34.
understood in terms of a "bundle of rights". In other contexts, it is best understood in terms of a "legally endorsed concentration of power"[1].
90 Accordingly, property is not for all purposes to be equated with "full beneficial, or absolute, ownership"[2]. Indeed, a proprietary relationship can have the quality of relativity. Especially is that so in relation to property in tangible things. It is an old and well-known application of common law doctrine, for example, that "the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner"[3].
91 The doctrine of the common law has been explained in terms that physical possession of a tangible or "corporeal" thing, in the sense of actual physical custody of the thing, "is not merely evidence of absolute title: it confers a title of its own, which is sometimes called a 'possessory title'". The possessory title that derives from lawful physical possession "is as good as the absolute title as against, it is usually said, every person except the absolute owner"[4]. Though the doctrine has been so much encrusted with technicalities that any exposition of it must be hedged with qualifications[5], a slightly more complete statement of it might be that lawful physical possession is as good as absolute title against every person except someone "who can show a better right to possession"[6].
92 The question, however, is not as to the content of the common law concepts of "possession" or "possessory title" but as to the meaning of "property" within the context of the Archives Act. The two are not the same.
- ↑ Yanner v Eaton (1999) 201 CLR 351 at 365–366 [17]–[19]; Telstra Corporation Ltd v The Commonwealth (2008) 234 CLR 210 at 230–231 [44].
- ↑ Yanner v Eaton (1999) 201 CLR 351 at 367 [22].
- ↑ Armory v Delamirie (1722) 1 Stra 505 at 505 [93 ER 664 at 664].
- ↑ Russell v Wilson (1923) 33 CLR 538 at 546.
- ↑ eg Moors v Burke (1919) 26 CLR 265 at 268–269; Willey v Synan (1937) 57 CLR 200 at 217–219.
- ↑ Holdsworth, A History of English Law (1925), vol 7 at 449. See The Winkfield [1902] P 42 at 55–56; Gatward v Alley (1940) 40 SR (NSW) 174 at 180; Gollan v Nugent (1988) 166 CLR 18 at 30–33, 48–49.
