#7137 - Recognition Of New Forms Of Proprietary Interest - Property A

Could be argued Blackburn J in Milirrpum demonstrated the pitfalls of looking for familiar incidents of property rather than asking whether the concept of PY was wide enough to protect the plaintiff’s use and enjoyment of the tribal lands. HCA in Mabo established a concept of NT – by rejecting reliance on conventional CL features used to identify property.

Courts reluctant to recognise – about once a century get new prop interest.

Reason for caution – since the rights can be enforced against the world, we need to limit the categories of proprietary interest we will recognise or chaos/confusion will result. (Edgeworth: the Numerous Clauses Principle.

Factors taken into account in recognising new prop interests:

• Subject of property

• Object of property

• Rights and entitlements that will attach to the object for the benefit of the subject

See case note.

See case note.

• The interference with profit of business is not a property right

• The interference was not with land but with profit

• Just because you put money into a spectacle does not make it a property right

However, dissenting judgments indicated it may be a property right at some point.

See case note.

The existence of Native Title as a form of property right was declined by the judge due to it failing to meet the requirements (right to alienate, right to exclude).

• Inalienability no reason to deny ownership of land

• NT can expire if people have lost their connection to the land

• Its content depends on traditional laws and customs.

• Inalienable to non-indigenous people who do not observe the laws and customs; alienable to others only if allowable under traditional law/customs.

• Not all the accepted characteristics of proprietary interests must be present in every case of a new proprietary interest being recognised.

Note the laws governing intangible things eg intellectual property rights is now almost exclusively governed by legislation.

Property rights in environmental goods/resources – eg can have proprietary rights in water. Courts are recognising new proprietary interests here.

Re Edwards: introduces some of the things the court will take into account in deciding if you can have a proprietary right in the human body or parts thereof. Very controversial area.

See case note.

• Wife entitled to the sperm of her dead husband

• See parts of case re Doodeward v Spencer: entitled to possession of a preserved baby’s body because of the exercise of work or skill applied to its preservation

• Doctors and technicians had exercised work and skill to remove the sperm, BUT they had done so as Ms Edwards’ agents.

See case note.

• A cell line derived from cells of a person is not their property as it is distinct from their cells; patent law rewards the inventive effort, not the natural creation of cells

• Read case for more.

The use of excised human cells in medical research does not amount to conversion because:

• A fair balancing of the relevant policy considerations counsels against extending the tort

  • The right of patients to make autonomous medical decisions are protected already by the principles of fiduciary duty and informed consent. Rather than extending the tort so that people who have no knowledge of an initial inadequate disclosure, these principles protect the patient directly.

  • The other policy consideration is that innocent parties engaged in socially useful activities such as researchers should not be threatened with disabling civil liability if they do not believe their use of a cell sample would be against a donor’s wishes. The extension of conversion law into the area of research on human cells would hinder research by restricting access to the necessary raw materials.

• Problems in this area are better suited to legislative resolution.

  • If researchers are to be held liable for failing to investigate the consensual pedigree of their raw materials, the Legislature should decide so on the basis of investigation (eg advice from experts, hearings of interested parties,...