Propertiness of Properly:

Perhaps the lasting significance of Victoria Park Racing lies in the fact that the conflict between the majority and minority views in this case throws up critical clues to the identification of the "propertiness" of property. True it is that much of the discussion in Victoria Park Racing was conducted obliquely in terms of the law of nuisance. But the central issue - so central that it lay largely unspoken - was whether the defendants had taken anything that might be regarded as the plaintiffs "property". (We must always be ready to hear the resonance of property in the dialogue of trespass and nuisance.)

There can be no doubt--and there was certainly none in the High Court--that in Victoria Park Racing the defendants had exploited a competitive commercial opportunity, in circumstances of no great credit to themselves, in order to profit from a market of horseracing enthusiasts who would otherwise have paid a lot of money to the plaintiff. In this sense the defendants had clearly taken something from the plaintiff but had they taken the plaintiffs property? Were the defendants guilty, as Dixon J. put it, of "misappropriating or abstracting something which the plaintiff has created and alone is entitled to turn to value"? In answering this question the majority and minority in the High Court were divided by fundamentally differing views of the phenomenon of "property"

The minority judges clearly believed that there had been a misappropriation. Rich J. spoke of each defendant as "appropriating ... part of the profitable enjoyment of the plaintiffs land to his own commercial ends...." In his view the conduct complained of had wrongfully diverted a "legitimate source of profit from [the plaintiff's] business into the pockets of the defendants". Evatt J.'s judgment echoed just as strongly the language of misappropriation. Evatt J. thought it "an extreme application of the English cases to say that because some overlooking is permissible, all overlooking is necessarily lawful". Here the overlooking engaged in by the defendants had enabled the broadcasting company "to reap where it had not sown". The defendants stood condemned of an unfair "appropriation" or "borrowing" of the plaintiff's investment of capital and labour. This had in turn enabled the listening public to "appropriate to themselves" the harvest of those who have sown.