76.
terminology is merely talk without substance–a filling of empty space with empty words"[1].
206 The essence of a property right to, or "property" in, a chattel as the right to exclude others also flows from the requirements for a property right in the chattel, namely that a person have (i) a sufficient degree of physical control (sometimes described as "factual possession"[2]) to the exclusion of others and (ii) a manifested intention to exercise that control personally (ie not on behalf of another) in a manner that "exclude[s] unauthorized interference"[3]. These two requirements have been recognised as essential for a property right to a physical thing for thousands of years[4]. They are the reason the common law has long refused to recognise as a property right the mere "custody" of a chattel where the custodian holds the chattel for another[5]. Hence, the common law has long held that "mere custody" of a chattel by a servant or agent on behalf of an employer or principal is not sufficient for a property right[6]. Similarly, for a property right to arise by bailment the bailee "must have both the intention and the practical means to exercise independent control over the item that would exclude the bailor's own possession and control"[7].
The established meaning of property applied in the Archives Act
207 The Archives Act generally uses "property" in this long-established common law sense with its essence being the right to exclude others. As the
- ↑ Gray, "Property in Thin Air" (1991) 50 Cambridge Law Journal 252 at 306.
- ↑ J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at 435–436 [40].
- ↑ Pollock and Wright, An Essay on Possession in the Common Law (1888) at 41.
- ↑ J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at 435–436 [40].
- ↑ Pollock and Wright, An Essay on Possession in the Common Law (1888) at 60.
- ↑ Alexander v Southey (1821) 5 B & Ald 247 at 248–249 [106 ER 1183 at 1183–1184]; Wilton v Commonwealth Trading Bank of Australia Ltd [1973] 2 NSWLR 644 at 651; Rowell v Alexander Mackie College of Advanced Education (1988) Aust Torts Reports ¶80-183 at 67,733; Burnett v Randwick City Council [2006] NSWCA 196 at [64], referring to Fleming, The Law of Torts, 9th ed (1998) at 73. See now Sappideen and Vines (eds), Fleming's The Law of Torts, 10th ed (2011) at 77 [4.180] and Palmer, Palmer on Bailment, 3rd ed (2009) at 458 [7-001].
- ↑ American Law Institute, Restatement of the Law Fourth: Property, Tentative Draft No 1 (2020), Bailments, §2 at 78, Comment e.
