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Summary Australian Property Law: Cases Materials and Analysis lecture Week 1- 12, tutorial work Week 1-12, complete

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Australian Catholic University

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Australian Catholic University (ACU )

CONCEPTS OF PROPERTY E.G. of property: things (goods), land, copyright (product of artistic/skilled endeavour), shares, contractual rights (debts), software, air, water, minerals, indigenous rights to hunt, fish, hold ceremonies, reside etc. • Property refers to a specific form of legal relati...

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LAWS205 PROPERTY 1

Summary Australian Property Law: Cases Materials and Analysis lecture Week 1-
12, tutorial work Week 1-12, complete

CONCEPTS OF PROPERTY
E.G. of property: things (goods), land, copyright (product of artistic/skilled endeavour), shares, contractual rights (debts), software, air,
water, minerals, indigenous rights to hunt, fish, hold ceremonies, reside etc.

PRIVATE PROPERTY

• Property refers to a specific form of legal relationship that an individual has with an object or resource, whether that object or resource
be tangible or intangible in nature.
• Property is a comprehensive term which refers to the degree of control which the law recognises as exercisable by individuals over
things.
• Legal definition of property → land, goods, shares, the benefit of a contract, the lyrics to a song, computer software, ideas, airspace,
encumbrances, rights attached to land, and indigenous cultural relationships over land.

Associated property rights
Rights that make up property include: the right to -
o use and enjoy the property (profit from it)
o possess (absence of possession does not deny the right its proprietary status)
o alienate (the right to alter ownership rights by selling, giving, mortgaging, leasing etc property to another)
o exclude others from the property
o responsibility to maintain, use and (dep. on legal system) share the property or its fruits with others.
• Bundle of Rights → focuses upon the conceptual foundations of the property relationship and views this relationship as a
collection of interrelated rights instead of a single definitive notion.
• Henry E Smith → property exists when we ascribe that label to the cluster of entitlements or the bundle of rights that arise from a
particular relationship
o e.g. when cluster of entitlements incorporates rights of exclusion

Property is a relationship
• Normative legal perspective → property refers to the relationship that an individual has with an object rather than the object itself
• Property relationship differs from other forms of relationship that may arise with respect to the object - due to the property
relationship conferring upon holder rights to use and enjoy the object, which may be exercised exclusively, and this exclusivity is
enforceable against the rest of the world.

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DISTINCTION BETWEEN PROPIETARY AND CONTRACTUAL (OTHER) RIGHTS

• In law of negligence, the relationship protected is that of ‘neighbourhood’ – the legal duty of care owed to other people as human
beings
• In law of contract, the relationship protected is that created by agreement of the parties themselves – it is quintessentially ‘private’,
because it only affects legal rights of the parties to it.

LEASES OR LICENCE?
• Some circumstances – a right that begins as a contractual right may be converted to a property interest
• E.g. a contract which is entered into for the benefit of 3P may be construed as a constructive trust where it would be unfair to deny an
intention to confer a beneficial interest upon a 3P
• A contract that confers possession may be interpreted as creating a lease because the possession which is conferred is exclusive in
nature.

Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 – HC held that a contractual licence to enter a racecourse was not
irrevocable and could not be construed as a property interest.
If the contract was irrevocable, it would be similar to a property right because of the availability in remedies of specific
performance would prevent the licensee from being removed from the premises.
FACTS:
o P (Cowell) sued D for damages for assault after being removed from a racecourse that he had paid to enter. He became a
nuisance and was asked to leave the course. He refused.
o D argued that P was trespassing on D’s land and D had used more force than was necessary to remove him
o P said D was conducting a race meeting and he had paid 4 shillings to enter and view the races and that the contractual
licence was not revocable and so D was in breach by ejecting him from the land
o He sued the racecourse for damages for assault
ISSUE:
o If he had a right to be there (e.g. an ‘irrevocable licence’ as he claimed), the removal would have been assault
o If the licence had been validly terminated, there was no assault as the force was no more than was necessary
HELD:
o P had a mere contractual right (licence) to enter the racecourse.
o It was not irrevocable, and could be withdrawn at any time. It is not a proprietary right, because it is created by a contract
and confers no proprietary right.
o The important point to note here is that permission from the owner of a property to enter land for a particular purpose is not
proprietary, unless it is coupled with something essentially proprietary in nature, such as a lease (exclusive possession) or
an easement (a right to use the grantor’s land for a purpose benefitting land owned by the grantee)
o The right to enter premises to view a spectacle is not such a proprietary right, and therefore can be revoked even if granted
by contract
o The distinction between contract and property is thus clear: Cowell was at most entitled to damages for breach of contract
o If he had property interest, he would have been entitled to an injunction and to damages for trespass to his person and
possibly substantial consequential damages

• Referred to Wood v Leadbitter (1845) 13 M&W 838l 153 ER 351 – held - where a man creates a proprietary right in
another and gives that other a licence to go upon land in order that he may see or enjoy that right, the grantor cannot divest
the grantee of his proprietary right and revest it in the grantor or simply determine it by breaking the agreement.
→The grantee owns the property to which the licence is incident and is unaffected by any purported revocation of the
licence
• Rejected Hurst v Picture Theatres Ltd (1915) 1 KB 1 – held that a right to see a spectacle constituted in an interest which
could be granted therefore a licence to go into a theatre/racecourse to see a play/witness races was, when given for value,
irrevocable → HC rejected the extent that it ignored the distinction between a proprietary and a contractual right.
o Distinction had to be made between the creation of a proprietary interest in land by a contract conferring possession
or enjoyment of the land, and the creation of a contractual right to use the land pursuant to how the owner of the land
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while unrevoked, authorised P to enter and remain

• A lease is an estate in land whereas a licence, ‘properly passeth no thing nor alters or transfers property in any thing, but only makes
an action lawful, without which it would have been unlawful’: Thomas v Sorrell (1693) Vaugh 330 at 351
• The fact that a licence may be coupled with a contract does not mean that it becomes proprietary and this is so even where the
contract contains a provision making the licence irrevocable.
• An owner/occupier of a public venue, not having a statutory power/some form of governmental/administrative control does not have
an obligation to afford natural justice when deciding to excluse a person from that venue, even though it may be in breach of a
contractual obligation in so doing: Hinkley v Star City Pty Ltd [2011] NSWSC 1289 at [135].

PRIVATE PROPERTY AS A PROTECTION OF WEALTH
Classical liberalism
▪ John Locke – private property as a “natural right” and the foundation of the State as a social contract between the State and its
citizens to protect their natural rights.
▪ Each human was free, equal and independent and others ought not to interfere with private property
▪ Property was a natural right, because the labour and effort of the private individual was expended in improving its value and therefore
the individual had a right to use and enjoy that property, once it had value
▪ Purchasing a property with money merely represented the way in which the value acquired at the start and the additional value added
by the predecessor was exchanged with the successor
Criticism: The main problem with this theory is the factual basis of it: there is no evidence of any social contract between members of
a society, or between members and their government.
▪ Law does not naturally occur in this way.
▪ Many traditional societies do not have strong concepts of private property, but have more communal rights to resources.

Utilitarianism
▪ “The greatest good for the greatest number”
▪ The protection of private property rights encourages individual and social wellbeing.
▪ Jeremy Bentham’s theory: Social actions are justifiable according as they maximise expected utility: ie promotes individual happiness.
▪ Criticism: this minimises the social impact of private property and the need also to promote broader social and community needs.
▪ The tension requires the legal system to shape the private rights of property by reference to society’s shared values and moral
commitments.

Socialism - Karl Marx:
• private property rights protect the wealth of the capitalists, who take control of the means of production, distribution and exchange so
as to appropriate to themselves the surplus value over and above the wages paid to those whose labour produced the object
• It is therefore an institution that should be abolished in the interests of social justice
• Criticism: Socialism removes the incentive individuals have to produce goods and participate robustly in economic activity. The
removal of private property rights vests all control and decisions about use of resources in the State, which is subject to conflicting
interests (eg. to promote industrial safety versus to profit).

Legal positivism
▪ This theory, espoused by John Austin, Professor Hart and others, starts not from the normative question of what the law should be,
having regard to moral or policy objectives, but rather from the expository question of what the law currently is.
▪ On this theory, law simply reflects the will of the current sovereign.
▪ Private property rights are therefore a contingent question, ascertained by simply looking at what the current statute book (or other
sources of law) says. There are no “natural rights”, just current law.
▪ Criticism: Law is not just a system of commands by law givers. It is a much more complex amalgam of facilitative regulations, and
accretions over long periods of time, developed by lawmakers responding to normative questions as they arise. Policy and morality
inform lawmakers.

PUBLIC INTERESTS AND PROPERTY
Property is a legal construct
In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 77 ALJR 356 at [44]: The only rights or interest s in relation to
lands or waters, originating otherwise than the new sovereign order, which will be recognized after the assertion of that new
sovereignty are those that find their origin in pre-sovereignty law and custom.
• Aus legal system should recognise native title rights in land, but only where those rights have their origin in pre-sovereignty
law and custom

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RESOURCES PROTECTED FROM OWNERSHIP
▪ Certain things cannot be owned privately
➢ res communes – access to air, running water, beaches, the sea
➢ the common law has traditionally regarded these as inviolable rights of the public to certain natural resources that
make them incapable of privatisation
▪ The policy of the common law reflects that some resources may not be “propertised” because to do so would be contrary to
fundamental moral assumptions and human freedoms. (Eg. human body parts, slavery)
▪ There are many policy debates at this margin: A right to privacy, a right to human tissue reproduced in research to develop medical
diagnostic tests or other products.
▪ The idea of res communes derives from Roman law and the idea of common heritage. Thus, for example, the resources of the high
seas or outer space cannot be appropriated and the use of them belongs equally to all people.

RESOURCES INCAPABLE OF OWNERSHIP- there can be no property in a spectacle or view
Example of excluding others from the object of property
Resource can be propertised if it is excludable. A resource is excludable only if it is feasible for a legal person to exercise regulatory
control over the access of strangers to the various benefits inherent in the resource

• Majority in Victoria Park refused to accept that the spectacle was property because it was not possible to exclude strangers from
the spectacle.
• Spectacle could not be physically excluded except at great financial cost (erecting wall etc)

Moral Boundaries:
• Not legally possible to own another’s life. However individuals are regarded as owning their own body parts.
• Where the part is non regenerative (vital organ), a 3P cannot claim ownership of it unless the owner has donated it during their life
or after death.

Common heritage of mankind
Natural resources in the high seas may not be owned or apportioned otherwise than in accordance with rules promoting the common
interest of all nations

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