Applicaiton of Doodeward v Spence on Re Cresswell PDF

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Laws205 Assessment

Ibrahim Gul Khan Property Law Assessment 1 Semester 1 2019

Application of principles set out in Doodeward v Spence [1908] 6 CLR 406 in the judgment and verdict in Re Cresswell [2018] QSC 142 The purpose of this essay is to analyze theories of property law in light of two judgments and to harmonize the findings in one in relation to the other. Both decisions deal with aspects of the human anatomy and the characteristics that can be attributed to the same from a legal perspective. Possession as a concept refers to property of any kind- tangible, intangible or intellectual being held by an individual or an individual having vested interests in the said property which can be established before an appropriate adjudicating authority if such a dispute arises. Possession in the literal sense however refers to the physical possession of any tangible property and can even imply the acquisition of intangible or intellectual property. Examples of tangible properties are houses or other immovable properties of the like where as examples of intangible and intellectual properties are goodwill and trademarks respectively. Thus the concept of possession goes beyond the mere acquiescence or acquisition of any such property but the establishment of vested rights in the same before an appropriate adjudicating authority if required. The judgment and verdict that will be critically analyzed in the following paragraphs refers is Re Cresswell1.However the verdict will be analyzed based on the decision in Doodeward v Spence2. Thus it is first important to curate the findings of the court in Doodeward v Spence and reiterate the same in order to bring out their true pith and substance. Doodeward v Spence pertains to the case of a biological anomaly relating to a still born. After the birth of the still born the specimen was kept by the attending surgeon and the same was sold at an auction after the death of the said surgeon. This auction was how the appellant came into possession of the above discussed specimen. The case was an appeal from a decision of the Supreme Court and the apex court had held that even though it was well settled law that on the death of a person the right to the possession of the body would not be vested in anyone even if there were certain vested duties that such person was obligated to perform. Thus, in light of such duties and obligations vested in a person a writ of mandamus, which refers to directional writ which a competent court cloaked with appropriate jurisdiction could issue, would lie in relation to the delivery of the corpse of the deceased. This court could only direct such delivery to be 1 [2018] QSC 142. 2 [1908] 6 CLR 406.

made to the person who is charged with or has the vested duty to bury the corpse. It has been stated however that the action brought in was for detinue or trover and the same would not lie unless the same could be treated as property. A corpse as reiterated by the Supreme Court could not be treated as property even if the same could be mandated to be delivered to a designated person for the purpose of burial. The right to bury the corpse would accrue on the death of a person, however, even in light of such a vested obligation on a person to bury the corpse the same could not be attributed the status of a property. Thus since the particular object in question could not be regarded as property the same could not be possessed. Therefore, there could not be any question of possession and the ancillary and incidental rights arising from such possession can be attributed to such an object. This is because an action for detinue or trover would not lie against a possessor but against a person who has wrongly attained possession of such a property. The right accrued that is required to be established in such an action would lie solely against a person in wrongful possession of the property. Thus since such object cannot be regarded as property the same cannot be wrongfully possessed and resultantly such an action would be futile and bad in law. This is why the action brought in by the appellant was dismissed and was thus unsuccessful. The court observed that if such an action was allowed and endorsed by the courts it would lead to a situation where corpses of eminent personalities could be obtained and the same would be acquired through illegal means. Once acquired the same can be stored as well as commercially distributed and the same would be an absurdity to law and order as well as public policy governing the commonwealth. Now coming to the facts and circumstances of the case Re Cresswell 3 they arise out of, as observed by the court, tragic circumstances. The similarities and congruencies between the two cases become clear when the idea of possession is considered in light of a corpse. The court in Doodeward v Spence had observed that a widow of the deceased would be obligated and would have a vested duty to bury the corpse but would not have a vested right in the corpse as the same could not be regarded as property. The instant case in regarding a corpse and objects removed from the same within a period of 48 hours from the death of the deceased. The question that arose here too was weather the same could be attributed the status of property and resultantly if a right of possession could be exercised over the same. The Queensland case arises out of a marriage where the husband passed away and the wife extracted a sample of his sperm 48 hours 3 [2018] QSC 142.

after the death of her husband. The question to be determined by the court was whether the sperm extracted by the wife 48 hours after the death of her husband can be considered as property and if so, if the same be considered to be property which can be possessed. To simply consider the same it refers to the possibility of the right of possession can be exercised over such an object. Thus, from this it can be inferred that the right of possession of such an object flows from attributing the status of a property to such an object. It would be abundantly clear from the same how the contentions raised in Doodeward v Spence similar to the contentions raised in the present case before us. In the instant case before us and the facts and circumstances arising therefrom we see that the deceased, who is the appellant’s husband, died in a workplace accident. Thus the reasons for the death were not natural. Moreover, 48 hours after the death of the appellant’s husband his testes were removed and the said sample of sperms which is in dispute was extracted from the same. It is evident here that such removal and extraction was properly and legally undertaken as the same was made pursuant to a court order as observed in Re Estate of Edwards 4. The Western Australian legislation governing the removal of such a part of the human anatomy is Human Tissue and Transplant Act, 1982 (WA). In this legislation it has been statutorily given effect to that human semen or sperms can be classified as property and thus the right of possession can be exercised over the same. In South Australia there is a legislation governing the use of sperms in various kinds of assisted reproductive processes, this legislation is called the Assisted Reproductive Treatment Act, 1988 (SA). Queensland does not have any governing legislation that covers the use of sperms in various kinds of assisted reproductive processes and thus any statutory law to the same effect was not in existence at the time of consideration of the case before us. The Human Tissue and Transplant Act, 1982 (WA) does classify sperms removed from human testes to be considered property which can be possessed or the right of possession can be exercised over the same, however the same is absolutely dependent on the compliance with the act at the time of such removal. Queensland has a similar legislation, which does consider such removal of human tissue and the object removed therefrom is considered to be property and thus an action for possession of the same would be maintainable before a court of law or any other appropriate adjudicating authority. This act is codified as Transplantation and Anatomy Act, 1979 (Qld) which is also called the TAA. The present case before the court would thus be governed by 4 [2011] 81 NSWLR 198.

the provisions of the Transplantation and Anatomy Act, 1979 (Qld) which is similar to the West Australian Human Tissue and Transplant Act, 1982 (WA). Thus if compliance with the provisions of the Transplantation and Anatomy Act, 1979 (Qld) can be established at the time that the removal of such object in question was being adjudicated then the court would have the right to direct such removal and would also have the right to attribute the status of property to such an object. However, the compliance with the provisions of the Transplantation and Anatomy Act, 1979 (Qld) and particularly the conditions prescribed under Sections 22 and 24 was a condition precedent to the attributing such a status to the object. The court came to the finding that when the removal of the sperms were undertaken by the attending doctor the condition of Section 22 and 24 of the Transplantation and Anatomy Act, 1979 (Qld) were substantially satisfied however it cannot be considered that the conditions laid down in the sections and thus the act as a whole was complied with. This is because the court order which authorized such removal was given effect to and issued without considering the provisions of the Transplantation and Anatomy Act, 1979 (Qld). This lead to the inherent absurdity that though in reality the conditions of the Transplantation and Anatomy Act, 1979 (Qld), particularly Sections 22 and 24, were satisfied but the same could not be construed as a valid compliance due to the nonapplication of the same in terms of the authorizing court order5. However, due to the finding of the court that such a court order can be given effect to and thus would be capable of executed as the same was it can be logically inferred that the Transplantation and Anatomy Act, 1979 (Qld) would apply in this case. Thus, in the case of Doodeward v Spence the court was inclined to rule that a corpse, or the entirely of the tissues from which the tissues in question were extracted, would be excluded from the definition of property and thus the same cannot be possessed. It can also be inferred that such a finding was arrived at by the competent court because under common law or any other law for the time being in force in the territorial jurisdiction of Australia and New Zealand could be considered to attribute such a status to the object in question. This is why the court could not arrive at a conclusion that the balance of equities was in favor of considering such an object property. The absence of an explicit codified legislation which would determine the question if such an object can be considered property and thus if the same can be possessed under law the court was confined to the understanding of the same in common law. Thus the conclusion that such an object cannot be considered property. However, in the present case the 5 Hepburn, Samantha. Australian Principles of Property Law. Routledge-Cavendish, 2013.

Transplantation and Anatomy Act, 1979 (Qld) is an express legislation which acts on the same lines and definitely gives statutory effect to the idea of such an object being property and hence being capable of being possessed. The act also states that unless compliance with the act can be shown the object would be excluded from such a definition, thus covering all possibilities required to be considered by the legislature. Thus the intention of the legislature in defining such an object was invariably to attribute such status to the same and this is why the court arrived at the finding that the same can be treated as property and hence the right of possession or any other vested rights arising therefrom can be exercised by the person entitled to such possession6. The court further observed that the non-compliance of the Transplantation and Anatomy Act, 1979 (Qld) if any was not substantive enough to warrant that the present case would be excluded from the operation of the act. Thus, it is invariably the case that the property in question, as statutorily defined, is capable of being possessed and hence the court was inclined to award that the widow of the deceased would be entitled to possess the tissues extracted from the corpse of the deceased. Thus due to the existence of specific statutory provisions the principles laid down in Doodeward v Spence would not be applicable to the facts and circumstances of the present case. A counter argument can be raised that since at the time the court order directing the extraction to be made was issued the court did not consider the application or the multifarious situations provided for in the Transplantation and Anatomy Act, 1979 (Qld). Thus, it maybe inferred that the extraction happened devoid of the application of the Transplantation and Anatomy Act, 1979 (Qld) and thus the principles laid down in Doodeward v Spence would apply7. However, as observed by the court at the time of the extraction of the tissues the conditions prescribed in Sections 22 and 24 of the Transplantation and Anatomy Act, 1979 (Qld) were substantially satisfied. Moreover, the court went on to observe that at any non-compliance of the Transplantation and Anatomy Act, 1979 (Qld) was not substantial and thus the instant case would not be excluded from the application of the act8. Therefore the counter argument would not succeed as the same disregards the existence of a specific statutory provision to cover the situation envisaged in the case.

6 Bridge, Michael. Personal property law. OUP Oxford, 2015. 7 Bradbrook, Adrian John, S. Grattan, and L. D. Griggs. "Australian property law: cases and materials." (2016). 8 Edgeworth, Brendan, et al. "Sackville & Neave Australian Property Law." (2013).

To conclude, property and possession are concepts that go beyond mere tangibility of an object or idea. Thus when attributing such a status to an object the courts would be painstakingly tasked with formulating tests that determine the same without infringing rights possessed by the other individuals. Thus, when construing something as property the facts and circumstances of each case are of utmost importance and must be adjudicated based on the inference of the court in each individual case. It is also pertinent to note that despite a settled position of law in common law, which is applicable in commonwealth countries, a specific statute dealing with a particular aspect of law in force for the time being the same must be adhered to despite the contradictory stand in common law. Thus, in Re Cresswell the court would not need to interpret the facts and circumstances or a point of law based on the principles laid down in Doodeward v Spence.

Bibliography

Articles/Books Bradbrook, Adrian John, S. Grattan, and L. D. Griggs. "Australian property law: cases and materials." (2016). Bridge, Michael. Personal property law. OUP Oxford, 2015. Edgeworth, Brendan, et al. "Sackville & Neave Australian Property Law." (2013).

Case laws Doodeward v Spence [1908] 6 CLR 406. Re Cresswell [2018] QSC 142. Re Estate of Edwards [2011] 81 NSWLR 198. Hepburn, Samantha. Australian Principles of Property Law. Routledge-Cavendish, 2013.

Legislation

Assisted Reproductive Treatment Act, 1988 (SA) Human Tissue and Transplant Act, 1982 (WA) Transplantation and Anatomy Act, 1979 (Qld)...