Is a Cause of Action a Castle? Statutory Choices in Action as Property and S 51(XXXI) of the Constitution

36 Pages Posted: 13 Dec 2018 Last revised: 17 Oct 2019

Date Written: July 31, 2018

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 choices 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 choices 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.

Keywords: constitutional law, litigation, choses in action, private property rights

JEL Classification: K11, K41

Suggested Citation

Duffy, Michael, Is a Cause of Action a Castle? Statutory Choices in Action as Property and S 51(XXXI) of the Constitution (July 31, 2018). Available at SSRN: https://ssrn.com/abstract=3292575 or http://dx.doi.org/10.2139/ssrn.3292575

Michael Duffy (Contact Author)

Monash University ( email )

23 Innovation Walk
Wellington Road
Clayton, Victoria 3800
Australia

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