91.
236 For these reasons, although I proceed on the basis that Sir John Kerr was the creator of the correspondence sent to the Queen and that the Commonwealth had no right to exclude him from the original documents if they were created for him personally, I do not do so on the basis of the application of Justinian's rule as the respondent had submitted. I do so because the creation of the originals of the telegrams sent were the subject of substantial work and skill by Sir John and both the nature and the value of those originals depend essentially upon that work rather than upon the materials used. The same principle applies to the "originals" of the letters sent which were described as "carbon copies". I accept the submission of the Solicitor-General of the Commonwealth, which was not contested, that the Court should draw an inference that these carbon copies were "created simultaneously upon Sir John writing the letters … rather than by some subsequent process by which an agent went away and copied them using a photocopier". However, the same conclusion might not apply in a case where the maker does no more than take a photocopy of another's thing so that the existence and nature of the new thing (if it be such) depends upon nothing more than the press of a button[1]. As the Director-General of the Australian Archives presciently observed during a committee consideration of the draft Archives Bill, "given modern copying technology, there may often be real doubt as to where ownership of a particular record resides"[2].
The correspondence was created and received by Sir John Kerr for the institution of the official establishment of the Governor-General
237 The primary submission by the appellant was that the Commonwealth obtained a property right to all the original documents created or received by the Governor-General in the course of performance of his duties. This submission cannot be accepted.
238 Since the Governor-General is neither the body politic of the Commonwealth nor the institution of the official establishment of the Governor-General, things created or received by the Governor-General can only become the property of the Commonwealth if the circumstances indicate that they were created or received officially, and retained institutionally. The creation or receipt of documents in that way involves physical control over the documents being asserted with a manifested, or objective, intention that the Commonwealth or the Commonwealth institution have a right to exclude others from them.
