A fascinating decision in the NSW Court of Appeal, Grant v YYH Holdings Pty Ltd [2012] NSWCA 360 http://www.caselaw.nsw.gov.au/action/PJUDG?s=1000,jgmtid=161678 (at least for those interested in personal property). Some 16 sheep from a rare breed had been wrongfully taken by the defendant. A demand was made for their return in early 2004, but was ignored, and not repeated until late 2010 when it became apparent that in the meantime the deft had been breeding the sheep and the flock was now about 200 in size. The claim in conversion and detinue for the original 16 failed due the expiry of the 6 year limitation period. The deft tried to resist the claim in relation to the progeny and other "genetic material" on the basis that they were all "contained within" the original 16, and hence the 2004 claim was a claim which included what is oddly called "the genetics".

The trial judge, and the CA, justifiably rejected the deft's claim to hang onto the later-born offspring. (The old common law rule was that the offspring of an animal belonged to the owner of the "dam", except, bizarrely, in case of swans! When the offspring were born, then, in 2004-2010, they belonged to the true owner before their property in the dam had expired.)

 Perhaps the deft ought to have known that their case was not likely to be viewed with favour when their strongest authority was a US slave-era case from the Supreme Court of Tennessee, Seay v Bacon (1856) 4 Sneed (TN) 99, 36 Tenn. 99 (Tenn.), 1856 WL 2500 (Tenn.), holding that the offspring of a slave woman were "included" in her purchase. The court with an appropriate degree of distaste rejected this authority. Basten JA commented at [82]:

"It is unacceptable to base common law principles on concepts which fail to recognize the equality of all before the law: Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 at 42 (Brennan J). However, for the law to treat a person as a chattel is one thing; to treat children as "part of the mother" so that they form, with her, "an aggregate property" is virtually incomprehensible, both biologically and legally."

Regards

Neil