Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

Spirits supernatural are shy; What’s all the fuss?… Hallowe’en Law Post

The probability that any law blog will eventually do a Hallowe’en themed entry approaches 1 given infinite time.  I don’t really think of this blog as a ‘law blog’.  It’s mostly a ‘Draft Arguments that I Might Use Later’ anthology.  Even so, let’s roll.

I have a few highlights to my career and working on Death Law (the law of morgues, organ donation, funerals, and cremation) is definitely among them.  It’s an area of law that regularly gets overlooked for reform because, I suspect, you risk upsetting a lot of people unnecessarily.  In the vast majority of cases, things just work and nobody calls a lawyer.  It’s where things are heated — family disputes especially — that problems emerge.  I also think its an area of law that is going to get more complex as very old common law principles are stretched to breaking point.

So a bit of a warning on this post: it’s macarbe and some of the subject matter might be upsetting.

Dodeward v Spence (1908): the two-headed baby case

When you die, who owns your body?  At common law generally, nobody.  A lot of the laws that we associate with property are inapplicable to corpses.  Occassionally, an academic will write an ‘Aha!’ paper, claiming that the rule that there’s no property in dead bodies is technically incorrect, but the fact is that courts seem to decide cases as if there is no property in corpses, and my unhallowed hands shall not disturb it.

And so there are a number of cases that we — rightly or wrongly — cite for this idea.  They’re pretty wild.  There’s a case from 1614 called Hayne’s Case: Mr Haynes was a bit of a graverobber and took to stealing the sheets in which bodies had been buried.  There was property in the sheets but not in the corpses.  There’s also R v Sharpe from 1856 in which Mr Sharpe decided that he absolutely hated the people at the Church where his mother was buried, so exhumed her corpse to rebury her somewhere more theologically appealing.  Old mate wasn’t done for theft (because that would require property to be in the body) but for trespass (which wasn’t defeated by any claim that he was trespassing to collect his property).

This body of law made its first High Court appearance in Dodeward v Spence (1908).  The corpse, in this case, is a two-headed baby who, in 1868, did not survive birth.  The doctor attending the birth preserved the body as a specimen of medical curiosity, but he died two years later.  The doctor’s possessions were sold at auction, including the preserved remains of the two-headed baby.  Mr Dodeward was given the specimen, and he travelled about the place charging people to see the two-headed baby.  He was arrested by Mr Spence, a Sub-Inspector of Police, who deposited the corpse with a university museum and returned the bottle and preserving fluid to Mr Dodeward.  Mr Dodeward then sued Mr Spence for the return of the body.

The court split with Griffith CJ and Barton J both sensing that the doctrine about no property being in a corpse did not properly apply in this scenario– else you could go and steal all the body parts preserved in museums; Higgins J had similar intuitions, but went the other way, saying that to recognise a right to have the return of the body would result in all kinds of chaos involving body snatchers: if I stole the corpse of some eminent man, such as Napoleon, and then my brother stole the corpse from me, Higgins was worried that I could come to court in order to have the body I snatched returned to me.

Also, we get the obiter in Australian law from this case (Higgins J) that it is illegal to destroy monsters.  That’s pretty cool.

Descas & Descas (2013): ‘where wife claimed former matrimonial home was haunted’

Such a great headnote.

Real estate agents tend to be bad at knowing how the law works.  It’s not like the ordinary public where there’s a broad absence of knowledge; real estate agents tend to have a heightened level of incorrect legal knowledge.  Some Australian real estate agents will inform you that you are required to inform prospective purchasers if the property is haunted.

It’s incorrect, but for a really wild reason: a lot of real estate agents don’t know that US law doesn’t apply in Australia.

In 1991, the Supreme Court of New York was faced with a weird case: Stambovsky v Ackley.  Ms Ackley sold a house to Mr Stambovsky, who subsequently learned that the house had a reputation for being haunted.  Why did the house have a reputation for being haunted?  Because Ms Ackley spent a lot of time telling everybody — including the Readers’ Digest and the local press.

The case has the unfortunate fact that the sensational claim — Ms Ackley ‘defendant is [prevented at law] to deny their existence and, as a matter of law, the house is haunted’ — is immediately prior to the much more sensible analysis: ‘no divination is required to conclude that it is [Ms Ackley’s] promotional efforts in publicizing her close encounters with these spirits which fostered the home’s reputation in the community. […] The impact of the reputation thus created goes to the very essence of the bargain between the parties, greatly impairing both the value of the property and
its potential for resale.’

The dissenting opinion was that the principle of caveat emptor should have applied, but this decision appears to have resulted in legislative reform about ‘stigmatised properties’.

So that gets us to Descas & Descas.  There’s a separation between the parties that had become messy for a few reasons that aren’t relevant here.  What is relevant is that the parties agree to appoint a valuer to prepare a joint valuation of the property they own.  Ms Descas instructed her solicitors to inform the valuer that the house was haunted:

Whilst we understand the difficulties present with same, our client has specifically instructed us to include in these questions, her belief that the property is haunted […]  Would you please advise whether any of the above affects the value of the property.

The Court considers this evidence and comes to the not unreasonable conclusion:

I found this account of the alleged haunting to be unbelievable and I am satisfied that the claim was fabricated for an ulterior purpose, namely, as an attempt to influence the valuer to return a low valuation of the former matrimonial home.

So it’s not looking good for ghost and goblins in Australian property law.

Other monsters, devils, and things of evil

I went looking for other fictional beasts in Australian case law and–apart from human rights–our system remains fairly committed to the rational and sensible.

I know of two ‘chain-rattling’ ghosts in Australian legal doctrine.  The first is my beloved de facto officers rule.  Very quickly, there can be situations where a person is holding an office and using the powers of that office but there’s some administrative defect in the process of appointing the person to the office.  The de facto officers rule says that things might be okay provided certain conditions are met.  When this rule was raised in a decision about Professional Standards Review for medical professionals, Flick J wrote:

The origins of this doctrine are indeed ancient. On one account it has been traced back to 1431: G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 at 526. It is said to have had its origins in the Wars of the Roses, when it was held that the judicial acts of a usurping king whose authority de facto was recognised during the usurpation were good and in some cases good even against the king de jure on his return to power: R v Cawthorne (1977) 17 SASR 321 at 330 per Bray CJ.

Whatever its precise origins, the chains of this ancient ghost continue to be jangled whenever it seems convenient to do so.


The second one is the tort-felony rule.  It’s an old rule that prevented a person from using a felony as a foundation for a claim in tort.  In Ceasar v Sommer [1980], Needham J wrote:

Whether the rule was based upon “the public policy of a bygone age when no police existed”, or whether the origin of the rule lay in the fact that the property of a convicted felon was forfeited to the Crown, its foundation has clearly disappeared, if indeed it ever existed, in New South Wales, despite our retention, for no discernible reason, of a totally artificial version of the archaic distinction between felonies and misdemeanours. What remains is the immutable principle
that the common law will have regard to the requirements of public policy.

But that’s not spooky enough for this entry.  In comes Wooten J in McMahon v Gould (1982) referring to Needham J’s decision:

I greatly sympathise with this view, and trust that the rule will stay buried, so that its ghost does not again rise to rattle medieval chains (albeit refurbished in Victorian times) in modern litigation.


If you do have nightmares about the tort-felony rule, I can only apologise and remind you that I did give a warning about the macabre nature of this post.

Sleep well.

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