64.
confidence[1]. Moreover, as a chattel, the "property in the paper" of a letter is owned by the recipient[2] and if the sender of a letter keeps a copy, that copy belongs to the sender, not the recipient[3]. Indeed, the Archives Act itself recognises that the National Archives of Australia may enter into arrangements to accept the care of records from a person other than a Commonwealth institution and that those arrangements may provide for the extent (if any) to which the Archives or other persons are to have access to those records[4].
179 But those respective positions were adopted because each party misunderstood and misconstrued the concept of "property" in the phrase "property … of a Commonwealth institution" in the Archives Act. As has been explained[5], the reference to "property" is not limited to something that belongs to another but, relevantly, extends to records in the custody of an institution. To treat "property" as limited to something that belongs to another would fail to recognise that many of the Commonwealth institutions are not legal persons. It is this which leads to the construction that has been given to "property" and, thus, the second limb of the definition of "Commonwealth record".
Issue
180 In the present appeal, it was an agreed fact that the package which was deposited with the Australian Archives under the letter of deposit of 26 August 1978 contained the letters and telegrams Sir John received from The Queen and a contemporaneous copy of each letter and telegram Sir John sent to Her Majesty. The question which emerges is whether that package was "property" of the official establishment of the Governor-General and was deposited by the Official Secretary on behalf of the official establishment of the Governor-General.
- ↑ OBG Ltd v Allan [2008] AC 1 at 76 [274], citing Philip v Pennell [1907] 2 Ch 577. See also Oliver v Oliver (1861) 11 CB (NS) 139 [142 ER 748]; Macmillan & Co v Dent [1907] 1 Ch 107 at 120–121, 129; British Oxygen Co v Liquid Air Ltd [1925] Ch 383 at 389–390. cf Moorhouse v Angus and Robertson (No 1) Pty Ltd [1981] 1 NSWLR 700, especially at 711; Musical Fidelity Ltd v Vickers [2003] FSR 50 at 907 [28], 908 [33].
- ↑ Pope v Curl (1741) 2 Atk 342 at 342 [26 ER 608 at 608]. See also Oliver v Oliver (1861) 11 CB (NS) 139 [142 ER 748]; Earl of Lytton v Devey (1884) 54 LJ Ch 293.
- ↑ In re Wheatcroft (1877) 6 Ch D 97 at 98.
- ↑ Archives Act, s 6(2). See also s 6(3).
- ↑ See [171]–[175] above.
