A Barrister's Blog

I find legal history and unusual common law principles interesting. So all of my buttons were pressed when I came across  In The Matter Of Bradbury Industrial Services Pty Ltd (In Liq) [2021] VSC 828  which was an insolvency case where:

1. There was an agreement between DBL and Bradbury, that 563 containers of DBL’s toxic and hazardous waste would be stored at a facility operated by Bradbury;
2. DBL went into liquidation;
3. The liquidator disclaimed the 563 containers as onerous property (which they clearly were) under s568 Corporations Act;
4. Bradbury commenced proceedings to set aside disclaimer and to compel DBL to remove the containers (which actually filled up 12% of their total storage capacity);
5. Just for good measure, Bradbury joined the State of Victoria (because ownerless property vests in the Crown under bona vacantia); and
6. There was an issue raised by Victoria about whether “crown” meant state or commonwealth (although the commonwealth was not joined).

So what is bona vacantia? Apart from meaning “vacant goods”, it is a common law doctrine enshrining one of the most ancient prerogatives of the Crown. It has been described as ‘a relic of a past age,’ when the monarch was closely involved with the administration of government. Nevertheless, prerogatives were introduced into the colonies of Australia as part of the common law of England, and since Federation have remained vested in the Crown in the right of the Commonwealth and State governments.

The essence of the doctrine of bona vacantia is the Crown’s entitlement to claim possession of ownerless personal property.  The common law rule is founded on the notion that ‘property must belong to somebody, and where there is no other owner … it is the property of the Crown’.  Bona vacantia thus comprises property that would have no owner unless claimed by the Crown; sometimes referred to as ‘property at large’.  It does not include property where the owner of such is merely unknown or untraceable.

It is a reflection on my dark sense of humour that I find it mildly amusing that the state was saddled with the responsibility for the toxic waste (yes, the bona vacantia claim succeeded). On the other hand, should DBL’s assets (if there were any) been applied in priority to deal with this problem? The environment or creditors – which should be more important….there’s a thorny question for another day.

Creative commons acknowledgment for the photograph.