Crennan J
88.
anomalous interests"[1], incorporeal interests and "'property' [which] has no existence apart from statute"[2] is encompassed by the term "property" in s 51(xxxi). Following the liberal approach, the restriction of just terms applies to any indirect acquisition of "the substance of a proprietary interest"[3].
The plaintiffs described their species of property under the Trade Marks Act (and other intellectual property legislation) as incorporeal personal property, and identified their rights and interests in respect of that property as including the right to exclude others from enjoyment of that property (and the goodwill attached to it) and the right to turn the property to valuable account by licence or assignment[4].
That identification of valuable rights and interests for the purposes of the plaintiffs' challenge under s 51(xxxi) in no way trespassed on, or bypassed, the well-understood differences between excluding others from the enjoyment of incorporeal property and a property owner's rights of exclusion under the general law in respect of land and chattels, adverted to by Dixon J in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor[5].
- ↑ Banking Case (1948) 76 CLR 1 at 349 per Dixon J; Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 303 per Mason CJ, Deane and Gaudron JJ.
- ↑ Attorney-General (NT) v Chaffey (2007) 231 CLR 651 at 664 [23] per Gleeson CJ, Gummow, Hayne and Crennan JJ; [2007] HCA 34.
- ↑ Banking Case (1948) 76 CLR 1 at 349 per Dixon J
- ↑ See Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 at 65–66 [42]; [2000] HCA 12.
- ↑ (1937) 58 CLR 479 at 508–509; [1937] HCA 45. See also Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] (1984) 156 CLR 414 at 444–445 per Deane J; [1984] HCA 73.
Telecommunications Corporation (1994) 179 CLR 297 at 303 per Mason CJ, Deane and Gaudron JJ, 312 per Brennan J, 325 per McHugh J; Smith v ANL Ltd (2000) 204 CLR 493 at 500 [7] per Gleeson CJ, 504 [20] per Gaudron and Gummow JJ, 524 [86] per Kirby J, 532 [117] per Hayne J, 542 [157] per Callinan J; [2000] HCA 58.
