89.
intended recipient[1]. By contrast, if the letters had been written by a person as an employee or agent then the title to the letters would usually be held by the employer or the principal[2], unless they were drafts, working papers, or "memoranda, notes, etc, made by him for his own information"[3]. The appellant's submissions effectively equated the legal position of the Governor-General with that of an agent. The respondent's submissions effectively equated the legal position of the Governor-General with that of the independent professional. All parties rightly recognised that the analogies were not entirely apt. But the underlying principle is important.
233 The underlying principle is one which generally allocates to a person a property right to a new thing that the person created for themself but allocates the right to another where the new thing was created for another. The issue of when a new thing is created for another is not affected by the purely subjective views of the creator. It depends upon objective assumptions of responsibility, established by express or implied undertaking, including by reference to the history and status of an office. Thus, if a solicitor, not acting as agent or employee, procures a contract or deed for a paying client then, unless their agreement provides otherwise, that document will be owned by the client[4].
234 This principle can only be stated in general terms. A qualification must be made. Although both of the examples – the "agent" and the "professional" – assume that the property right becomes that of the creator of the new thing or the person on whose behalf the creator acts, that general proposition is not always true. Where a new thing is created using the materials of another, sometimes the property right will be held by the owner of the materials. Perhaps in anticipation that this might be an issue, the respondent submitted that the appropriate rule in relation to correspondence sent by Sir John Kerr was the approach adopted in Justinian's Institutes by which the creator of a new thing (here, the "carbon copies" and telegrams created by Sir John being assumed to be a new thing) became the owner unless the materials were all owned by another and the new thing could be
- ↑ Earl of Lytton v Devey (1884) 54 LJ Ch 293 at 295, citing Pope v Curl (1741) 2 Atk 342 at 342 [26 ER 608 at 608].
- ↑ Breen v Williams (1996) 186 CLR 71 at 88, 101, quoting Leicestershire County Council v Michael Faraday and Partners Ltd [1941] 2 KB 205 at 216.
- ↑ Breen v Williams (1996) 186 CLR 71 at 89, citing Chantrey Martin v Martin [1953] 2 QB 286 at 293 and Wentworth v De Montfort (1988) 15 NSWLR 348.
- ↑ Breen v Williams (1996) 186 CLR 71 at 89.
