The one goods argument
46It was common ground that wherever the word "goods" appears in s 21(b) of the Limitation Act, it refers to the "goods" in respect of which a cause of action for the conversion or detention has accrued to a person as provided in s 21(a).
47The appellants contended that the original 16 Awassi sheep and the progeny were the same "goods" for the purposes of s 21 because the respondents' entitlement to the progeny arose from the conversion of the original goods (the genetic material of the original sheep) into the progeny which contained the same goods (genetic material). Accordingly, they argued the original demand for the return of the 16 sheep was a demand for the return of that genetic material, as, too, was the November 2010 demand. Accordingly the November 2010 cause of action was a "further cause of action for the conversion or detinue of the (genetic material)" and was not maintainable because it was not brought until more than six years after the first demand was made, in January 2004.
48The appellants cited a number of cases said to support this proposition. Some were cases in which the "goods of A [became] indistinguishably and inseparably mixed with the goods of B" (Sandeman & Sons v Tyzack & Branfoot Steamship Co Ltd [1913] AC 680 (at 695) per Lord Moulton; referred to with approval Hill v Reglon Pty Ltd [2007] NSWCA 295 (at [91] - [100]) per Beazley JA (Spigelman CJ and Ipp JA agreeing)) and it was held that if that mixing arose from B's fault, A could claim the intermingled goods. Another, McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303, concerned the law of accession, that is to say, the principle by which "[i]f any corporeal substance receives an accession by natural or artificial means, as by the growth of vegetables, the pregnancy of animals or the embroidery of cloth, the original owner is entitled by his right of possession to the property in its improved state": Halsbury's Laws of England, LexisNexis UK online (at [1238]). None concerned the operation of the limitation period on the intermingled or improved goods. They rise no higher than the proposition that the owner of the goods which are intermingled with the tortfeasor's goods or improved as Halsbury explains, are the property of the original owner.
49The appellants also relied upon Seay v Bacon (1856) 4 Sneed (TN) 99, 36 Tenn. 99 (Tenn.), 1856 WL 2500 (Tenn.), a decision of the Supreme Court of Tennessee. The facts of Seay v Bacon as they appear from the headnote were that:
"The maternal grandfather of the complainants, then all minors, by deed of gift unregistered, in 1831 conveyed to them a female slave [Dinah], and delivered the possession of said slave to the father and mother of the complainants. In 1832, the father and mother, by joint bill of sale, for a valuable consideration sold and conveyed the slave to the defendant, who had full knowledge of the gift to the complainants, and who held said slave and her in-crease until 1852, when this bill was filed, within less than three years after the youngest of the complainants became of age. Between the time of the sale to defendant and the filing of the bill, the slave had borne six children, several of whom were born after the eldest of the complainants was free from all disability to sue."
50The complainants sought to recover Dinah and her six children. The defendant resisted the claim on the basis that as at least one of the complainants was free from disability when the right of action accrued, the limitation statute ran against all complainants, thus barring recovery as to all of Dinah's children born after the eldest complainant attained majority. The court described this argument as "ingenious" and dependant upon the proposition that:
"The child, it is said, is, in law and in fact, a separate, distinct, individual being; that, as such, it is capable of a separate dominion, property and possession, and the title and possession may be transferred in any of the various modes provided for the transfer of other personal chattels ... Consequently, it is argued, when the mother is wrongfully held by another, at the birth of a child, a right of action accrues to the owner to bring a separate suit, at his election, for the recovery of the child alone, and a successive action for each child subsequently born. And hence the conclusion is deduced that the statute attaches at the instant of the birth of each child."
51The argument was rejected in the following terms:
"This reasoning, however plausible, is contrary to the course of professional and judicial opinion in this State. By our law, the issue of a female slave follows the condition of the mother. The children are part of the mother, and, potentially, exist in her before they have a being. The ownership of the mother carries with it the property in the children born of her during the period of such ownership. The mother and her issue are treated, in respect of the title and rights of the owner, as an aggregate property. Whatever affects the rights or remedies of the owner as respects the mother, equally affects his rights and remedies in respect to her issue.
It is certainly true, in law as in fact, that this unity of interest and of possession is capable of being severed, either by the voluntary act of the owner, or the tortious act of another, or by act of law; and upon this being done, distinct and opposing rights may spring up. But until such severance is actually effected, the statute of limitations cannot operate upon part of the aggregate property, and be inoperative as to the remaining part. If the right of the owner is saved for a definite period as to the mother, it is saved likewise as to the issue born of her during such period.
The argument for the defendants rests mainly, as we suppose, upon a mistaken assumption, namely, that a separate right of action accrues to the owner for the recovery of each child at the moment of its birth. If the mother and her issue, as has been already assumed, constitute an aggregate mass, then the cause of action is entire; and being so, it cannot, upon principle, be split into several actions. The consequence would perhaps be, that, if a part were recovered in a separate action, the judgment would be a bar to another action for that part of the property not sued for in the first action." (Emphasis added).
52The appellants relied upon Seay v Bacon to support their contention that the progeny of the original 16 sheep are "aggregate property", and, accordingly, the same "goods" for the purposes of s 21 of the Limitation Act. I do not accept that submission. As the passages emphasised in the extract from the case demonstrate, the Tennessee court's decision appeared to be founded on the law as to slavery in that State which treated slaves as in a special category. However, in Buckley v Buckley, Administratrix of the Estate of Henry A Buckley, deceased 12 Nev. 423, 1877 WL 4371 (Nev.) (an action brought to recover a flock of ewe sheep or their value, the right to their increase and the wool subsequently shorn from the flock), the Supreme Court of Nevada, having cited the passage the appellants rely upon from Seay v Bacon (at [5]), and referring to other cases dealing with slaves, said (at [6]) that, "there was no distinction at that time, as objects of property, between negroes and domestic animals".
53Seay v Bacon reflected a view which had currency in some quarters prior to the abolition of slavery, that slaves were regarded as chattels and, accordingly, that actions for their conversion or wrongful detention would lie at the suit of their owners: see Pearne v Lisle (1749) Amb 75 (at 76 - 77); (1749) EngR 142; 27 ER 47. The conclusion in Buckley v Buckley, Administratrix of the Estate of Henry A Buckley, deceased is consistent with to the conclusion reached in Pearne v Lisle. In that case, the Lord Chancellor, Lord Hardwicke, had "no doubt that trover will lie for a Negro slave; it is as much property as any other thing". His Lordship declined to grant specific performance of a contract to provide such slaves saying, by analogy with "stock on farm", that they were not in a special category. As Young J said in Borg v Howlett [1996] NSWSC 153; (1996) 8 BPR 15,535 (at 15, 538), "the exact words used by his Lordship are now outdated, and, indeed, the whole thrust of what he said would now be considered abhorrent". Nevertheless his Honour applied his Lordship's reasoning insofar as it concerned stock on a farm to conclude that, prima facie, racehorses were not of the nature of a special chattel. That reasoning, in my view, applies, a fortiori, to sheep, even those of the Awassi line which, while perhaps of a distinct genus, are bred for primary production purposes no different from the greater Australian sheep stock.
54The Seay v Bacon approach to commodification of individuals by treating them as an article of possession was effectively rejected in Somerset v Stewart (Somerset's Case) (1772) Lofft 1; (1772) 20 State Tr 1; (1772) 98 ER 499 prior to the settlement of the Colony of New South Wales in 1788. In that famous case, Lord Mansfield held (Lofft, at [19]) that "[t]he state of slavery is of such a nature, that it is incapable of being introduced [into the law of England] on any reasons, moral or political". "Chattel slavery" being " 'full ownership of another human being" was unlawful under Imperial legislation dating back to colonial times, a position now reflected in s 270.3(1)(a) of the Criminal Code Act 1995 (Cth): R v Tang [2008] HCA 39; (2008) 237 CLR 1 (at [81]) per Kirby J.
55Shortly after Seay v Bacon, the American Civil War began in 1861 and, after the success of the Union forces, slavery was abolished in that country. It might be thought that the notions of chattel slavery such as are reflected in Seay v Bacon might have vanished with that abolition, although subsequent cases, including Buckley v Buckley, Administratrix of the Estate of Henry A Buckley, deceased tend to confound that belief.
56Seay v Bacon does not, in my view, enunciate a principle concerning the title to the progeny of the sheep which finds a basis in Australian law. The appellants cited no binding or persuasive authority which applied its reasoning concerning "aggregate property" in the present context. There is, in my view, no reason why, as a matter of principle, the owner of the 16 original sheep does not obtain a separate title to the progeny. The progeny have a separate existence. Although the respondents' ownership of them was derived from their title to the original 16 Awassi sheep, once the progeny were no longer in utero they were separate entities and the respondents had a separate title to them.
57In any event, in my view the one goods argument cannot be sustained on the facts. The respondents offered to, and did, purchase "all Awassi sheep owned by Awassi (Aust) Pty Limited (In Liquidation)" from the liquidator. The respondents' January 2004 demand was "to collect the 16 Awassi sheep from [the appellants'] property in Cowra", while the November 2010 demand was to recover "the sixteen original Awassi Sheep, as well as all purebreds and cross-breeds bred from the original sixteen (16) Awassi Sheep directly or indirectly".
58It was never put to Mr Daws at trial, that the respondents had purchased the "genetic material" rather than the sheep. Any proposition to that effect would have been inconsistent with the objective evidence of the contract: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165. While it might be accepted that from time to time Mr Daws used the word "genetics" as, for example when he referred to the first respondent attempting to recover "the full genetics that were purchased", it is plain that he used that expression to refer to "the 16 sheep": see Transcript at 38(45)-(50). As the November 2010 demand demonstrated, the respondents regarded the 16 original sheep as different from the progeny.