Lecture 1: Introduction to Property

1. Lecture 1: Introduction to Property Assoc Prof Cameron Stewart

2. The Blind Men and the Elephant • John Godfrey Saxe

3. What is property? Real & Personal • Real Property – realty, interests in land – land is three dimensional space located by reference to a point on the earth’s surface – fixtures – in the past only land was recoverable • Real Property is also split into two categories – corporeal and incorporeal hereditaments (a right capable of being devised to an heir)

4. What is property? Real & Personal • Personal Property – catchall • (a) Chattels real – leasehold and other interests in land that are less than freehold – distinction drawn because of an institutional definition of rights – only freeholds were enforceable by real actions for recovery • (b) Chose in possession – a movable corporeal thing – eg goods

5. What is property? Real & Personal • Sale of Goods Act 1923 s 3(1) "chattels personal other than money and things in action and also includes emblements and things attached to and forming part of the land which are agreed to be severed before sale or under the contract for sale" • Bankruptcy Act 1966 s 5(1) – ships aircraft and other vehicles; animals including fish; minerals, trees and crops, whether on or attached to the land or not and gas and electricity

6. What is property? (c) Chose in action – a movable incorporeal thing - rights which are enforceable by action – eg shares, patents copyrights, equitable securities, contractual rights, promissory notes, cheques, mere equities Test: (i) Enforceability (ii) Incorporeal and intangible (iii) Bare right – not occupation and enjoyment

7. Interest defined • The conventional term for the bundle of rights which a person has in an object. • Eg interests in land (covenants, easements, caveats, contract for sale) v ownership of land

8. Ownership defined Knapp v Knapp [1944] SASR 257 at 261 per Mayo J: "The general right of ownership embraces subsidiary rights such as exclusive enjoyment, to destroy, to alienate or to alter, and, of course, the right to maintain, and to resume and recover possession from other persons"

9. Ownership defined Ownership indicates the relationship between a person and a corporeal or incorporeal legal object. It confers a bundle of rights to enjoy, use possess, dispose of and alienate a "thing" as well as the capacity to ward of any encroachment on the thing. Ownership can be limited by other rights but is not dependent on other rights. • Ownership is therefore the subsidiary right that is left when all other interests in the property have been taken away (Campbells Hardware & Timber Pty Limited v CSD (Qld) (1996) 96 ATC 4348)

10. Title defined • Title is the measure of the strength of an interest. It provides a yardstick to measure the strength of competing claims of interests in property

11. Possession defined • No complete, logical and exhaustive definition of "possession" has ever been given for the common law – United States of America & Republic of France v Dollfus Mieg et Cie SA & Bank of England [1952] AC 582 at 605 • "Possession connotes a relationship between a person and some material object. It is a relation subsisting in fact. The ‘right’ of the possessor to the chattel arises out of the factual situation" – Button v Cooper [1947] SASR 286 at 292

12. Possession defined • Two elements are necessary – (1) control (corpus possessonis) – some exercise of power over the goods or land • (2) intention (animus possidendi) – an attitude in the mind of the actor denying the rights of other to have access to the land or goods

13. Possesory Title • Possession confers a possessory title – possession is a root of title – possession is not only evidence of title but is a form of title itself – hence you have a claim against the whole world barring the true owner – title is relative

14. What are the characteristics of "property"? • Possession • Physical control - corporeality - what about all the incorporeal forms of rights which are also property? • Exclusion • The right to stop others from enjoyment of the thing • Backburn J in Milirrpum v Nabalco

15. What are the characteristics of "property"? • Enjoyment and use • Property rights are also use rights - but there may also be rights to enjoy which are not "property" - rights to use public space - do you have a right to enter a national park - generally yes, but you do not "own" that right • Some rights of enjoyment can be transferred into property - fishing and hunting rights can fructify into property (eg when the animals and fish are killed or captured they become property)

16. What are the characteristics of "property"? • Other enjoyments rights might have some proprietary characteristics - eg a business telephone number: • Rahne v Telstra Corporation (unreported, Young J, 8 June 1995)

17. What are the characteristics of "property"? • Definable and Identifiable • You have to be able to recognise it for you to enjoy the rights of protection and use • But property on the fringe is becoming vague - colors (Eagle Boys pizza), sounds (Harley Davidson) • The Colour Purple - Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446 and subsequent litigation

18. What are the characteristics of "property"? • Durable • Does property have to last? In general it would be hard to say that something which disappeared or was destroyed after a short time could be owned or enjoyed as property - but durability is a poor indicator of property given the explosion in the number and types of choses in action - these have no physicality and hence don't exist in the real world at all

19. What are the characteristics of "property"? • Transferable/assignable; • Alienation - If a thing can be sold then it is most likely to be considered as property • Is it merely personal to the right holder or can the right holder trnafer the right to another? King v David Allen & Sons • Gordon Laidler and Associates Pty Ltd v Hocking - Young J 6 march 1995 – fishing licence

20. What are the characteristics of "property"? • Dominion – right against the world (in rem) • Blackstone - what restrictions exist for property owners today?

21. What are the characteristics of "property"? • Public interest – benefits v detriments of recognizing property rights • There will be some property interests that will not be recognised because of the public interest • Some historical examples: • The quasi proprietary nature of familial services

22. Property theory • John Locke • Bentham • Karl Marx • Hohfeld • Rawls • Nozick • CB MacPherson

23. Examples of things falling out of “property” • Slavery - the common law was uncomfortable with the slave as property because of the traditions of habeus corpus - but it had no problem with recognising slavery in the colonies - Sommerset's case 1772 – 1807 manumission

24. Examples of things falling into “property” • Native title? • Milirrpum • Mabo • Yanner v Eaton

25. Human tissue – falling into property? • Modern example - human organs, tissue and corpses • Background • Burial rights, the definition of death and the invention and perfection of transplantation • Blackstone wrote (15thed, 1809, Book II, Ch. 28, pp 428-9) that: • "…though the heir has a property in the monuments and escutcheons of his ancestors, yet he has none in their bodies or ashes; nor can he bring any civil action against such as indecently at least, if not impiously, violate and disturb their remains, when dead and buried. [But] if any one in taking up a dead body steals the shroud or other apparel, it will be felony; for the property thereof remains in the executor, or whoever was at the charge of the funeral." • Resurrectionists, Burke and Hare

26. Scenario 1 • Car accident • You are thrown from the vehicle • Your right arm is severed • You stem the bleeding • A man walks past picks up the blood and walks off • Can you get the arm back?

27. Scenario 2 • You are dying of lung disease • You are a racist • Your other organs are fine and you wish to donate your kidneys : • one to your daughter who has polycystic kidney disease; and • the other to “any white child”

28. Scenario 3 • You and your partner had a young child of 12 weeks who died from a rare disorder • After a postmortem examination the body is returned to you and you bury your child • 5 years later you go to an exhibition of anatomy specimens and you see a child’s heart and lungs on display with your child’s disease. Later inquiries confirm that it is your child’s organs. • What can you do?

29. Res nullius • Human tissue cannot be the subject of property Professor LoaneSkene (2002; 2007) is a leading advocate of why property rights should not be recognised in human tissue. She states that following public policy issues justify the law’s failure to recognise property rights (2004: 166): • emotional (a repugnance at people selling their bodies and body parts); • familial (stored genetic material should be available to blood relatives for their own testing, not subject to veto by one person); • pragmatic (the possible consequences of such a principle for hospitals and laboratories); • economic (undue fettering of teaching, research and commercialisation of biological inventions); and • social (maintenance of museum collections and educational institutions)

30. Res nullius and the labour theory • Doodeward v Spence (1908) 6 CLR 406 • Dobson v North Tyneside Health Authority [1997] 1 WLR 596 • R v Kelly [1999] QB 621 • Moore v Regents of University of California 793 P 2d 479 (Cal 1990) • Greenberg v MiamiChildren’s Hospital 264 F Supp 2d 1064 (2003) • Washington University v Catalona437 F Supp 2d 985 (2006)

31. Organ Donation by Living Adults Non-regenerative tissue Non-regenerative tissue may be donated for transplantation into the body of another person. There must be a delay of at least 24 hours after the consent to the donation has been made before the tissue may be removed. In South Australia the consent must not be given in the presence of the donor’s family. . In Western Australia the consent must not be given in the presence of the adult’s family and friends. Certification A medical practitioner may certify that: consent was given in the presence of the medical practitioner (in Queensland, the designated officer); the nature and effect of the removal of the tissue had been explained; the adult was of sound mind and the consent was given freely. In all jurisdictions, except South Australia and Western Australia, the time of the consent must be included in the written consent (in New South Wales the day and time must also be included). When the written consent has been gained and the certificate signed, the tissue may be removed for the approved purpose.

32. Organ Donation after death Subject to the certain conditions below, a designated officer may authorise removal of tissue from the body of a deceased person where the body is at a hospital and the purpose is for transplantation to a living person or other therapeutic, medical or scientific purposes. Deceased’s views known Where the designated officer has made reasonable inquires to determine whether the deceased had expressed a wish or had consented to removal of tissue after death and (except in Victoria) it had not been withdrawn or revoked, the removal may be authorised (in writing) in accordance with the wish or consent.

33. Organ Donation after death Deceased’s views not known Where there has been no explicit expression of consent by the deceased and the deceased had not objected during their lifetime, and the senior available next-of-kin does not object (in New South Wales, Queensland, Tasmania and Victoria actually consents), the designated officer may authorise the removal of tissue. In the ACT, Northern Territory, South Australia and Victoria, if the senior available next-of-kin cannot be contacted the designated officer may authorise the removal of tissue: Transplantation and Anatomy Act 1978 (ACT), s 27(3); Human Tissue Transplant Act 1979 (NT), s 18(3); Transplantation and Anatomy Act 1983 (SA), s 21(3); Human Tissue Act 1982 (Vic), s 26(1). . ‘Senior available next-of-kin’ means (in the following order of priority): in relation to a child – a parent of the child; a brother or sister who has attained the age of 18 years; or a guardian of the child in relation to any other deceased person – the spouse of the deceased (some jurisdictions will recog­nise a same-sex relationship in this category); a son or daughter who has attained the age of 18 years; a parent of the deceased person; or a brother or sister of the deceased person who has attained the age of 18 years.

34. Organ retention scandals • Alder Hey Hospital • AB v Leeds Teaching Hospital NHS Trust [2004] EWHC 644 • McStay v. Minister for Health and Children [2006] IEHC 238 • Stevens v Yorkhill NHS Trust [2006] ScotCS CSOH 143

35. Posthumous property problems • organ retention scandals in Australia • wrongs regarding the corpse • control of the dead • research on the dead – dummies or stiffs? • posthumous conception • allografting and personality – the ‘Return to Eden’ Dilemma or John Woo strikes back with a ‘Face Off’?

36. Sperm bandits Boris Becker and wrongful use of sperm? Conversion? Breach of Confidence?

37. Reproductive material and control • Stolen sperm? • BM v DA (2007) 39 Fam LR 168. The couple had been in a relationship that had broken down. After their breakup the woman told the man that she was pregnant and that she needed both a blood and semen sample for testing the baby for genetic abnormalities. A child was later born prematurely but at a much later date than would have been possible if she had been pregnant during the relevant time. The man alleged that the woman was not pregnant and had deceived him into providing sperm with which she later impregnated herself. It was later confirmed that the man was the genetic father of the child. The woman sought child maintenance orders from the man but the man argued that, as the child had been artificially inseminated, he was not the legal father. Henderson FM found for the man. As the parties were not married or in a de facto relationship no presumption arose that the man was the parent. Given the child was conceived through artificial insemination, the relevant state law applied, to the effect that, as a sperm donor, he was not the legal father of the child.

38. Disputes over embryoes • Evans v Amicus Healthcare Ltd [2004] 3 All ER 1025 • Caufield v Wong 2005 ABQB 290

39. Conditional Donation of Sperm • Assisted Reproductive Technology Act2007 (NSW) s17 • (1)  A gamete provider may give an ART provider that obtains, or proposes to obtain, a gamete from the gamete provider a written notice setting out the gamete provider’s wishes in relation to the gamete (the gamete provider’s consent). • (2)  A gamete provider’s consent may address such matters as the uses that may be made of the gamete (or an embryo created using the gamete) and whether the gamete or embryo may be stored, exported from this State or supplied to another ART provider.

40. Racist gifts and public policy Kay v SESAHS • I give the Children’s hospital at Randwick $10,000 for the treatment of White babies • Racial Discrimination Act s 8(2) This Part does not apply to: (a) any provision of a deed, will or other instrument, whether made before or after the commencement of this Part, that confers charitable benefits, or enables charitable benefits to be conferred, on persons of a particular race, colour or national or ethnic origin; or (b) any act done in order to comply with such a provision

41. Breakthrough? • Jonathan Yearworth & Ors v North Bristol NHS Trust [2009] EWCA Civ 37 (04 February 2009) • Negligent storage – bailment?

42. Breakthrough? • We conclude: • (a) In this jurisdiction developments in medical science now require a re-analysis of the common law's treatment of and approach to the issue of ownership of parts or products of a living human body, whether for present purposes (viz. an action in negligence) or otherwise. • (b) The present claims relate to products of a living human body intended for use by the persons whose bodies have generated them. In these appeals we are not invited to consider whether there is any significant difference between such claims and those in which the products are intended for use by other persons, for example donated products in respect of which claims might be brought by the donors or even perhaps by any donees permissibly specified by the donors.

43. Breakthrough? (c) For us the easiest course would be to uphold the claims of the men to have had ownership of the sperm for present purposes by reference to the principle first identified in Doodeward. We would have no difficulty in concluding that the unit's storage of the sperm in liquid nitrogen at minus 196°C was an application to the sperm of work and skill which conferred on it a substantially different attribute, namely the arrest of its swift perishability. We would regard Kelly as entirely consistent with such an analysis and Dobson as a claim which failed for a different reason, namely that the pathologist never undertook to the claimants, and was not otherwise obliged, to continue to preserve the brain.

44. Breakthrough? (d) However, as foreshadowed by Rose LJ in Kelly, we are not content to see the common law in this area founded upon the principle in Doodeward, which was devised as an exception to a principle, itself of exceptional character, relating to the ownership of a human corpse. Such ancestry does not commend it as a solid foundation. Moreover a distinction between the capacity to own body parts or products which have, and which have not, been subject to the exercise of work or skill is not entirely logical. Why, for example, should the surgeon presented with a part of the body, for example, a finger which has been amputated in a factory accident, with a view to re-attaching it to the injured hand, but who carelessly damages it before starting the necessary medical procedures, be able to escape liability on the footing that the body part had not been subject to the exercise of work or skill which had changed its attributes?

45. Back to the scenarios • With property rights you can get the arm back, without them you can’t • With property rights the directed donation is legal as is the racist condition, without property rights the kidneys cannot be taken • With property rights you can sue for the return of the preserved organs and the emotional damages, without them you have no claim