Is a cause of action a castle? Statutory choses in action as property and s51(xxxi) of the Constitution

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Abstract

New laws often involve the creation of new private rights of action for breach of those laws. The chose in action in the form of the statutory right to civil compensation is a type of right that has multiplied over the last 50 years. The increase in rights has led to greater litigation and one reaction is the occasional complaint that society has become too litigious. ‘Reining in’ such litigation might occasionally suggest the statutory modification of rights of action; however, a question then arises as to the status of such choses in action as a form of private property. In particular, would intervention by the legislature to diminish such rights constitute an acquisition of property within s 51(xxxi) of the Commonwealth Constitution requiring the provision of just terms? The article examines the nature of, and justification for, private property protection and plots a connection to statutory choses in action. It then analyses the relevant jurisprudence on s 51(xxxi) and assesses in some detail how far that section may apply to a legislative diminution of private statutory causes of action.
Original languageEnglish
Pages (from-to)1-54
Number of pages54
JournalMelbourne University Law Review
Volume4
Issue number1
Publication statusPublished - 2018

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