Privacy

'In Defense of Privacy-as-Control (Properly Understood)' by Michael Birnhack in (2025) 65 Jurimetrics comments 

Privacy-as-control (‘PaC’) is one of the dominant conceptions of privacy. PaC means that each person should be able to decide for themselves whether to disclose personal data to another person, company, or the state, when, how, and under which conditions. PaC is translated into operational mechanisms, namely Fair Information practices (FIPs). In practice, we have little control, especially vis-à-vis data-driven corporations. Privacy scholars blame PaC for much of the muddle in the field, claiming that PaC achieves the opposite––loss of control and privacy. This Article defends PaC, properly understood. 

I address PaC’s critique and offer a positive account. The critique wrongly reduces PaC to the principle of notice-and-choice/consent, underestimates the role of notice, and wrongly deduces the ‘ought’ (denounce PaC) from the failing ‘is’ (consent’s many failures). Critics also point to the individualistic nature of PaC. While PaC surely has such a core, it has always placed the individual in relation to others. Properly understood, PaC can serve both individuals’ privacy and societal values and is not at odds with the communitarian thesis or with the notion of networked privacy. 

On the positive side, the Article argues that PaC is broader than consent and is not exhausted after the initial collection of personal data. Rather, we should conceptualize privacy as continuous control. To facilitate continuous control, the law creates data meeting points between people and their data, which enable data subjects to exercise their control, beyond the first encounter between the parties. Instead of denouncing PaC, we should search for ways to amend consent and strengthen control. 

The Article organizes privacy justifications as a series of concentric circles, moving from the individual to social interactions, the community, and the state. Each circle subsumes the previous ones. The high-level justifications are translated into a midlevel instruction: PaC. Thus, PaC is a common denominator of various privacy justifications. Following Daniel Solove, I suggest that PaC is privacy’s Wittgensteinian family name. Finally, the Article explains the relationship between PaC and Privacy-as-Access, argues that PaC can provide the missing normative element in Nissenbaum’s framework of contextual integrity, and that PaC does not mean property.

Feudalism

The 1999 Scottish Law Commission report on Abolition of the Feudal System - largely given effect through legislation the following year - considered entails, tenure and other matters alongside an exploration of 'The rise and fall of the feudal system'. 

 1.7 The feudal system of land tenure depended on the theory that all land was ultimately owned by the Sovereign. The Sovereign would feu out lands to be held by vassals in return for military services. The vassals would sub-feu on the same basis to vassals of their own, who might in turn sub-feu, and so on downwards in an ever-widening pyramid. The relationship between superior and vassal was a continuing relationship with reciprocal rights and obligations, originally the rendering of military service by the vassal and the provision of a secure tenure and military protection by the superior. The feudal system of land tenure was not confined to Scotland. Indeed it came to Scotland comparatively late in its development. Its spread over much of Europe was a remarkable phenomenon. It could not have achieved such success if it had not met the needs of the times in an efficient way. But times change. The feudal system has now been abolished and superseded practically everywhere. In France it did not survive the Revolution. In England it was substantially dismantled in the seventeenth century, leaving a complicated system of different kinds of "estates in land" which was later greatly simplified by a series of statutes culminating in the Law of Property Act 1925. 

1.8 In Scotland the system survived but only because it became commercialised and, eventually, attenuated and debased. The first stage was the disappearance of the military element. Armies were no longer raised by relying on feudal obligations and the overtly military type of feudal tenure was gradually replaced by a type of feudal tenure (known as feu farm) under which the dues to be rendered to the superior were entirely in the form of money or goods. There was a significant reform in 1746 when the Tenures Abolition Act abolished entirely the old, and originally military, form of tenure known as ward holding. Lands formerly held on that tenure from the Crown were to be held on blench holding (for one penny Scots per year, if asked only) and lands formerly held on ward holding from a subject superior were to be held on ordinary feu farm tenure for an annual feuduty in money or goods. 

1.9 A series of further reforms in the 19th century removed some obsolescent relics in the feudal system, such as the formal ceremony of the giving of sasine, and did much to simplify the remarkable complexities of feudal conveyancing. Reforms in the present century have improved the vassal's rights and reduced those of the superior. From an economic point of view the vassal with dominium utile can virtually be regarded as outright owner. In most cases the rights of superiors are valueless, or at least worth less than the cost of conveying the superiority. As a result, when a superior dies, the heirs may not bother to lay claim to the titles. However, the theoretical structure remains. There is still a notional pyramid of interests in land with the Crown, the paramount superior, at the top and the owner of the dominium utile at the bottom. Each intermediate level in the pyramid is a separate estate in land, a mid- superiority or dominium directum, owned by a person who is a feudal superior in relation to the owner or owners at the level below and a vassal in relation to the owner or owners at the level above. The system is inherently and unnecessarily complex, involving as it does multiple "owners" of the same piece of land. 

1.10 Just as important as the legal reforms have been changes in the functions performed by the feudal system. In the days before building societies, it provided a way of buying property for a reduced capital sum coupled with a substantial feuduty. Superiorities which carried the rights to feuduties came to be regarded as secure and attractive investments at a time when investment opportunities were much more limited than they are now. Many superiorities passed into the hands of financial institutions and other bodies with large investment portfolios.10 The feudal system also provided a form of private planning control, particularly in urban areas, at a time when other forms of planning control were non-existent. The urban landscape of Scotland owes a great deal to this function of the feudal system. From the vassal's point of view the system offered perpetual tenure, generally regarded as preferable to holding on a long lease which would eventually run out. 

1.11 The feudal system of land tenure now exists in only a shadowy form. Most feuduties have been redeemed.  Even before the redemption scheme began to extinguish feuduties on a massive scale, feudal superiorities had ceased to be regarded as an attractive investment. Fixed feuduties were at the mercy of inflation and the small sums now due in many cases are often more trouble to collect than they are worth. The town and country planning function of the feudal system has become distorted. The role of the superior is often less that of restraining building than of charging money for allowing it. Privately enforceable restrictions on the use of land in the form of real burdens still have a useful role to play, subject to appropriate restrictions and safeguards, in supplementing the planning law in minor or local matters but such real burdens do not have to be linked to the feudal system.They can be enforceable by the neighbouring owners who have an interest to enforce them. Superiors are often remote. Indeed, they are increasingly unknown to the vassal. Even the minimal link which resulted from the annual payment of feuduty has largely disappeared with the progressive redemption of feuduties. 

1.12 Although an empty shell for most practical purposes, the system is still susceptible to abuse. It is also a continuing source of unnecessary complications in Scottish property law. 

Earlier recommendations for abolition 

1.13 In 1966 the Halliday Committee on Conveyancing Legislation and Practice recommended that all existing feus should ultimately be converted into holdings direct of the Crown, all intermediate superiorities being extinguished. The Government later concluded that feudal tenure should be abolished completely subject only to certain rights vested in the Crown.  Unfortunately this was not done. The legislation which followed from these deliberations introduced important reforms but stopped short of complete abolition of the feudal system of land tenure. It did, however, pave the way for abolition by (a) providing a mechanism for dealing with outdated or restrictive real burdens (b) prohibiting the creation of new feuduties (c) conferring a right to redeem feuduties voluntarily and (d) providing for the compulsory redemption of existing feuduties on the next sale of the property in question. 

Our discussion paper 

1.14 Our Fourth Programme of Law Reform contained an item on "property law". Under this heading the Commission said that its first objective was "the consideration of land tenure law reform with a view to the completion in due course of statutory reform of feudal tenure".  In pursuit of this objective the Commission published a discussion paper20 which sought comments on "the formulation of a new system of land tenure in Scotland to replace the existing feudal system and on ways of effecting a transition to the new system". 

1.15 The great majority of the responses to the discussion paper supported the principle of the abolition of the feudal system, although some specialist commentators raised issues, largely of a technical kind, which required further consideration. The responses to the consultation and the further work which had taken place on the preparation of a draft report enabled the Commission to state firmly in its Fifth Programme of Law Reform that its aim was the complete abolition of the feudal system of land tenure and its replacement with a modern system. 

The case for abolition 

1.16 From the point of view of social policy the main reason for recommending the abolition of the feudal system of land tenure is that it has degenerated from a living system of land tenure with both good and bad features into something which, in the case of many but not all superiors, is little more than an instrument for extracting money. Superiors who have no actual interest in the enforcement of real burdens can extract money from vassals for granting waivers of their right to insist on observance. This practice has continued notwithstanding the power of the Lands Tribunal to vary or discharge unreasonable or unduly burdensome land obligations.  A burden on the vassal's title which is on the face of it enforceable by the superior has a nuisance value even if the burden would in all probability be discharged by the Lands Tribunal. Superiors are still able to charge a sum which takes into account the trouble, delay, expense and uncertainty involved in seeking a variation or discharge from the Tribunal. Indeed even burdens which are manifestly invalid or unenforceable have a nuisance value to the superior which can be turned into money. The practices of many superiors in relation to the charging of fees for waivers have given rise to frequent complaints and demands for reform. 

1.17 There are other reasons of a more technical nature for recommending abolition. Even if it were not susceptible to abuse for monetary gain the feudal system would be in need of reform. It now serves no useful function. It has become an anachronism which needlessly complicates the law.  Abolition is an essential first step in any more general programme of land reform. No country with any interest in the state of its laws would wish to carry forward such a system into the next century. 

1.18 It has sometimes been suggested that the feudal system should be modified rather than abolished and that all existing feudal holdings of land should be converted into holdings direct of the Crown. It was argued by one respondent to our discussion paper that the abolition of the paramount superiority of the Crown would diminish the constitutional position of the Crown in Scotland. We think that this argument is misguided. There is no reason why complete abolition of the feudal system of land tenure should have any effect on the constitutional position of the Crown. We recommend provisions expressly designed to ensure that the Crown's prerogative rights as sovereign and head of state are undiminished.  It would be illogical, inconsistent and artificial to retain the highest element in the feudal system of land tenure while abolishing all the lower elements. 

1.19 In short, abolition of the feudal system of land tenure would remove archaic features of the Scottish system of conveyancing and land ownership which either serve no useful purpose or are positively harmful. It would bring legal theory into line with practical reality. It would finally eliminate feuduties from Scottish land law. It would greatly simplify that law and pave the way for further reforms. 

Some essential definitions 

1.20 The feudal system of land tenure. By the "feudal system of land tenure" we mean the system whereby land is held by a vassal (who owns the dominium utile) on perpetual tenure from a superior (who owns the dominium directum) who may in turn hold from another superior, and so on up to the Crown or Prince and Steward of Scotland. This form of tenure falls to be distinguished from the position of a tenant under a lease. Leases, although sometimes very long, are not perpetual,26 and do not involve the relationship of superior and vassal. It also falls to be distinguished from allodial tenure where the land is owned outright, without any link to the Crown as ultimate superior. The main example of allodial tenure is the udal system still found in Orkney and Shetland. 

1.21 Land which was acquired by the Crown by conquest, feudal custom, annexation or other means, but which has never been feued out by the Crown, is not within the feudal system of land tenure as here defined. Crown rights to such land, even if originally derived from feudal might or feudal custom, are not held of a superior and are not within the feudal system of land tenure as defined for the purposes of this report. 

1.22 Land. By "land" we mean not only surface land (including land covered by water) and the buildings and other structures which accede to it, but also the separate tenements which are capable of being held on feudal tenure under the present law. These include flats in tenement buildings, minerals under the ground, and the right to fish for salmon, as well as some more esoteric subjects. 

1.23 The appointed day. At various points in this report and in the draft Bill reference is made to "the appointed day". This is the day on which the main provisions of any Act based on the draft Bill would be brought into force. It is the day on which the feudal system of land tenure would be finally abolished. The date would be fixed by the appropriate Minister. For practical reasons it should be either 28 May (Whitsunday) or 28 November (Martinmas) because these are the dates on which feuduties are normally payable. We envisage that the appointed day would be sufficiently long after the date when the Act is passed to give people time to make any necessary arrangements to adapt to the new law. In some cases, for example, provision is made for rights to be reserved by registering a notice.Time would need to be allowed for this to be done. A period of two years would in our view be sufficient but we do not recommend any specific period. It is useful to retain a degree of flexibility at this stage. 

Our main recommendations 

1.24 In this report we recommend the abolition of the feudal system of land tenure and its replacement by a system of outright ownership.  Vassals would become owners. Any feudal estate ofdominium utile would be converted into simple ownership of the land. All remaining feuduties would be extinguished.  Real burdens in grants in feu (such as restrictions on the use to be made of the property) would cease to be enforceable by superiors. Superiors would disappear. However, we recommend  that a former superior who owns neighbouring land should be able, subject to restrictions and within time limits, to register a notice preserving real burdens in favour of that land. Such preserved burdens could then be enforced as non-feudal burdens provided that the former superior, as owner of the neighbouring land, had an interest to enforce them. We also recommend that where a feudal real burden provides for the maintenance of a common facility it should be enforceable after the date of abolition of the feudal system by the owners of the benefited properties.Otherwise there would be cases where the only person entitled to enforce the burden was the superior and where, consequently, the burden would cease to be enforceable, to the detriment of all the affected properties. We also recommend the preservation of certain real burdens imposed for conservation purposes by bodies on a list to be established by the Secretary of State; and of certain burdens affecting the sea bed or foreshore.These are important, but also exceptional, cases. Most real burdens would fall with the feudal system itself. 

1.25 We recommend that compensation should be payable to superiors for the loss of the right to feuduties and for the loss of the right to certain real burdens which reserve development value to the superior.  We do not, however, consider that compensation should be payable for the loss of exploitation rights, by which we mean the right to exact money from vassals by charging for waivers of conditions which the superior has no desire to enforce and which were not imposed in order to reserve development value to the superior. 

1.26 In the existing law there are certain forms of tenure and types of payment which are similar to feudal tenure and feuduties. We recommend the abolition of the form of tenure known as Kindly Tenancies.The holding of land on this form of tenure will be converted into ownership, which it already is for practical purposes. We also recommend the abolition of such payments as ground annual, skat, teind, stipend and standard charge.  The abolition of teinds, stipend and standard charge cuts away the basis of some statutory provisions and these too will be repealed. The practical effect is to enable some obsolete legislation concerning former methods of funding parish churches to be repealed.  We do not, however, recommend the abolition of udal tenure. This is already non-feudal ownership. 

1.27 We recommend the abolition of entails, already defunct in practice.39 This will enable many obsolete statutory provisions to be repealed. 

1.28 The abolition of the feudal system of land tenure affects the law on the transfer of land in important ways. The draft Bill appended to this report contains new provisions40 on the way in which the ownership of land may be transferred and contains many consequential amendments and repeals.41 It also contains many repeals of obsolete conveyancing provisions. Some of these repeals are not strictly consequential on the abolition of the feudal system. However, abolition has provided a convenient opportunity for clearing out whole areas of obsolete law.

The section on entails states 

9.8 Entails, or tailzies, were at one time commonly used to keep lands in the same family for generations. A feudal grant of land would be made in such a way that the succession to it was strictly regulated and protected. For example, the deed might provide that on the death of the owner the land was to pass to his eldest son or other male heir and so on for subsequent owners. At any one time there would often be an heir in possession and an heir apparent who could expect to succeed to the lands on surviving the heir in possession. The stipulated line of succession would be secured by provisions, called the fetters of the entail, whereby any attempt by the heir in possession to interfere with the succession or to reduce the extent or value of the estate, for example by selling or feuing or burdening the property or even, in some cases, granting leases, resulted in the lands passing immediately to the next heir. 

9.9 The lawfulness of entails of feudal land was established by the Entail Act or "Act concerning Tailyies" of 1685. This Act also established a register of tailzies - later known as the register of entails. 

9.10 The disadvantages of tying up land by strict entails quickly became apparent and a long succession of statutes, beginning with the Entail Improvement Act 1770, gradually increased the powers of the heir in possession to deal with the land in ways inconsistent with the fetters of the entail. In the 18th and early 19th centuries there were also numerous private Acts of Parliament to enable heirs of entail to sell or burden the entailed estates for the payment of debts. The judges were hostile to entails. The Court of Session developed a rule that the provisions of entails were to be interpreted strictly, and many lands were effectively disentailed by judicial construction. 

9.11 the preamble that A significant reform was introduced by the Entail Amendment Act 1848 which, with "the law of entail in Scotland has been found to be attended with serious evils, both to heirs of entail and to the community at large" introduced provisions enabling heirs in possession to disentail the lands. An heir born after the date of the entail (if the entail was dated after 1 August 1848) or after 1 August 1848 (if the entail was dated before that date) could disentail without any consent. In other cases the consent of the heir next in succession was required. The procedure was by application to the Court of Session for authority to execute, and register in the register of tailzies, an instrument of disentail. The effect was to remove the fetters of the entail. The heir in possession was placed in the same position as a full owner. The special destination in the titles remained in force but the owner could defeat it by disposing of the property or altering the succession to it. See the Chronological Table of Private and Personal Acts 1539-1994. 

9.12 Acts of 18756 and 18827 enabled even those heirs in possession who required consent to obtain the authority of the court to disentail without the consent of any succeeding heir provided that the value of the interest of any such heir was ascertained and paid or secured on the land. Finally, the Entail (Scotland) Act 1914 prohibited the creation of new entails after 10 August 1914. 

9.13 Entails have for a long time had serious disadvantages from the point of view of tax planning. Heirs of entail will normally have been advised decades ago to take advantage of the facilities for disentail. There must be few, if any, entails still in existence. Any heir of entail in possession born after the date of the entail can now disentail without any consent or payment of compensation. Given that all existing entails must have been dated before 10 August 1914 there must be few, if any, cases where there is an heir of entail in possession who was born before the date of the entail. Even if there are any, they can disentail without the consent of the heir next entitled to succeed if the value of that heir's interest or expectancy is ascertained and secured on the land. 

9.14 The result of the long history of statutory intervention in relation to entails is that there are some twenty statutes still in force to deal with an area of the law which has become obsolete. Many of these statutes contain feudal language which would have to be amended to deal with the consequences of the abolition of the feudal system of land tenure. We concluded that this would be a pointless exercise and that, rather than amend the entail statutes to remove feudal terminology, we should recommend the ending of entails and the repeal of all this obsolete legislation.  We were confirmed in this view by consultation with the Keeper of the Registers, the Law Society of Scotland and some firms of solicitors known to represent large landed estates or to have acted in relation to entails in the past. 

9.15 We have considered the question of compensation. For the reasons given above it seems likely that any remaining entailed estates could be disentailed under the existing law without any consents and without the need to pay compensation. Only if the heir in possession was born before the date of the entail (which must have been before 10 August 1914) could there be any question of compensation. We doubt whether any provision for compensation would be used. However, it can do no harm to err on the side of caution and to include a provision. An appropriate mechanism would be a claim to the Lands Tribunal for Scotland within two years after the appointed day. The Tribunal would have power to value the claim and to order the amount to be secured on the land for the benefit of the claimant in such manner as they might think fit. Normally the date of payment out of the lands would be the death of the current owner. If the owner chose not to alter the succession - so that the  next heir succeeded in any event - the secured amount would cease to matter because it would be due to and by the same person. 

9.16 The Keeper of the Registers suggested that provision should be made for the formal closure of the Register of Entails and for its transmission to the Keeper of the Records of Scotland for preservation. Otherwise there might be continuing applications for the registration of old deeds relating to entails. It appears that applications for the registration of pre-1914 deeds of entail continued to be received for decades after new entails were prohibited by the Entail (Scotland) Act 1914. We agree with this suggestion.

Property

'Proprietary Data, Open Data, Data Commons: Who Owns the Data? How to Best Reconcile Conflicting Interests in Exploiting the Value of Data and Protecting Against its Risks' by Luisa Kruse and Maximilian Grafenstein comments

 The European data strategy aims to make the EU a leader in a data-driven world. To this aim, the EU is creating a single market for data where 1) data can flow across sectors for the benefit of all; 2) European laws like data protection and competition law are fully respected; and 3) the rules for access and use of data are fair, practical and clear. In order to structure the corresponding initiatives of legislators and public authorities, it is important to clarify the data ownership models on which the initiatives are based: Proprietary data models, Open Data models or so-called data commons models. Based on a literature analysis, this article first provides an overview of the discussed economic and social advantages and disadvantages of proprietary and Open Data models and, against this background, clarifies the concept of the data commons. In doing so, this article understands the data commons concept to mean that everyone has an equal right in principle to exploit the value of data and control its associated risks. Based on this understanding, purely technical power of the data holder to exclude others from “her” data does not mean that she has a superior or even exclusive right to generate value from the data. By means of legal mechanisms, the competent legislator or public authorities may therefore counteract such purely de facto powers of data holders by opening their technical access control over data for other parties and define the conditions of its use. In doing so, the interests of the data holder in keeping the data for themselves must be weighed up against the interests of data users in using the data as well as the interests in controlling the related risks of all parties affected by this use. While this balancing exercise may be established, in a more or less general manner, by the European or national legislator or even by municipalities, data intermediaries will have to play a central role in ensuring that this balancing of interest is resolved in specific cases. Data intermediaries may do this not only by specifying the general data usage rules provided by the legislators and municipalities in the form of context-specific access and use conditions but above all by monitoring compliance with these conditions.

Souls and a jumble of legal gibberish

In Nelson v Greenman & Anor [2024] VSC 704 Gobbo AsJ dealt with a range of pseudolaw arguments, including the assertion that one party's soul - and everything else - was outside Victorian Law. The judgment features reference to the sovereign citizen “People’s Court of Terra Australis”. 

The judgment states  

17 On 19 January 2024, Einsiedels solicitors lodged the Caveat over the Land on behalf of the first defendant. 

18 On 21 February 2024, Mr Harffey filed a Form 46A Summons and an affidavit in the 2023 Proceeding seeking to be joined as a party to that proceeding as: (a) the ‘Occupant of the office of Special Trustee for the "Douglas, Stephen Ross, Estate Trust A.B.N. 79 773 773 977 and the Koo Wee Rup Ministry, Trust A.B.N. 88 778 945 997” both formally Expressed and Established in 2017’; (b) the ‘rightful trustee of the property concerned’; and (c) ‘Trustees of The Property’. 

19 On 27 February 2024, Victoria Police made a second unsuccessful attempt to execute the VCAT Warrant. 

20 On the same day, Quigley J, heard the appeal filed by the Bankrupt and his son against the orders of VCAT, including the application by Mr Harffey to be intervene and be joined. 

21 On 18 March 2024, Quigley J dismissed the 2023 Proceeding. 

22 On 21 March 2024, Victoria Police executed the VCAT Warrant, removed the Bankrupt and his family from the Land, and gave the plaintiff possession. The plaintiff has appointed estate agents and conveyancing lawyers to assist with selling the Land which is currently being offered for sale. In order to proceed with the sale of the Land, the plaintiff seeks the removal of the Caveat. ... 

The first defendant’s case is expressed in two different sources. First, in the documents provided by his former solicitors, Einsiedels, to the plaintiff’s solicitor in purported support of the Caveat. Second, in the First Defendant’s Affidavit and the other documents submitted in opposition to the application. For the reasons that follow, I have determined that there is no cogent evidence before the Court from which the Court could be satisfied that the first defendant has a prima facie case for the asserted implied, resulting or constructive trust. 

Documents submitted by Einsiedels 

27 Dealing first with the letter from Einsiedels dated 19 February 2024 (‘Einsiedels’ Letter’), the first defendant’s interest in the Land, was expressed in the following terms:

The Trust property is a Christian ministry headquarters and is listed as a house of worship. It was the earliest Christian church in Koo Wee Rup in the 1800’s before there was a dedicated church built in the town, and since our client has been at the house they have held Sunday services and prayer meetings in the house with visiting churchgoers. 

Ther are two trusts, one being the DOUGLAS Stephen Ross Estate Trust and the other being the Koo Wee Rup Ministry Trust. 

Our client, Paul Spencer Green [sic], has instructed us that their caveatable interest in the property is due to his role as Special Trustee for the DOUGLAS, Stephen Ross, Estate Trust ABN: 79 773 773 977 as shown to you in the first attachment titled “Acceptance of Office - Special Trustee - dated 11.1.2024”. 

The Special Trustee was formalised by trust deed which included the property at Lot 1 Walker Street, Koo Wee Rup in 2017 and is in possession of the property at present. The Trust is a Life Estate in Fee Simple. The Trust has a caveat on the property. Under the Trusts (Hague Convention) Act 1991 Cwth [sic], whoever holds a title to the property holds it on behalf of the trust. 

With this in mind, it is our belief that Simon Nelson cannot touch any assets of a religious ministry or church. It is part of exempt property held in a trust by the bankrupt for the benefit of someone else as described in Sect. 116 of the Bankruptcy Act. The “others” described in the Act would be the not for profit, charitable trust organisation, being the Koo Weep Rup Ministry. It is a non-denominational, Christian ministry, operating out of Lot 1 Walker Street, Koo Wee Rup. 

We also enclose the Certificate of Trust Affirmation. 

28 The ‘Certificate of Trust Affirmation’ was in two parts. The first page, carrying an unidentifiable coat of arms and the words Commonwealth of Australia, was headed Acceptance of Office “Special Trustee”’ and was in the following terms: 

DOUGLAS, Stephen Ross, Estate Trust 

Whereas, Paul Greenman, of Berwick in the Original State, Victoria, The Commonwealth of Australia, whom, is known to execute contracts by the Name: Paul Greenman, does hereby accept the Office of Special Trustee for the DOUGLAS, Stephen Ross, Estate Trust - [ABN: 79 773 773 977), this private agreement with trust provisions is in full force and effect as of subscribing hereunto with the authorisation of the Special Trustee. This Trustee further pledges to minister, protect, and preserve The Trust, through prudent exercise of the powers and authorities vested to the Office, as expressed in the Trusts Deed and the limits of the Office set by The Board of Trustee, and acknowledge that I may be removed from the Office by The Board without cause by written notice therefrom. 

Affirmation: 

Whereas, this Acceptance of the Office is hereby affirmed by subscribing hereunto, with explicit reservation of all rights, without prejudice to any of those rights, and reserve the right to resign from any position at any time. This Private Contract is entered and executed willingly, knowingly, and voluntarily in good faith and with clean hands. 

29 The second page was a document headed ‘Certificate of Trust Affirmation’ which purportedly recorded the ‘DOUGLAS Stephen Ross, Estate Trust’, a ‘pure express trust’ signed on 16 November 2023 with the settlor named as Stephen Ross Douglas and the Trustee named as Keith-Charles, who the document recorded was ‘known to execute contracts using the name Keith Charles Harffey’. 

30 A further document headed ‘Trust Schedule’ was also attached which recorded the name of the trust as ‘Douglas, Stephen Ross, Estate Trust – [ABN 79 773 773 977]’, the settlor as Mr Stephen Ross Douglas, the special trustee as Mr Keith Charles Harffey and the type of trust being a ‘Hybrid Trust: Discretionary Trust and a non-fixed Unit Trust’. The document further recorded that the founding date for the trust was 2 October 2019 and the applicable law was ‘King James Version Bible (A.D. 1611)’. 

31 Even the most cursory review of the documents enclosed with Einsiedels’ Letter, leaves no doubt that the documents are no more than a jumble of legal gibberish. That those documents were conveyed by a solicitor on the basis that they recorded either proper and competent instructions or a trust said to support a caveatable interest in the Land, which Caveat the solicitor then lodged, is nothing short of staggering. 

32 The many and obvious shortcomings with the documents enclosed with Einsiedels’ Letter were addressed in a letter sent by the plaintiff’s solicitor on 6 March 2024. The plaintiff’s letter sought the removal of the Caveat within seven days failing which the plaintiff indicated that an application would be made to Court for its removal together with a claim for indemnity costs. There was no response to that letter. .... Einsiedels were not present before the Court at the hearing of the application in order to provide an explanation for their conduct which I have identified. Documents submitted by the first defendant 

35 In addition to those documents contained in Einsiedels’ Letter, the First Defendant’s Affidavit set out a myriad of further assertions which appeared to mirror many of those which appeared in documents previously provided to the plaintiff. 

36 The First Defendant’s Affidavit, which was 34 pages of nonsensical quasi‑legal concepts and phrases, Bible quotes and references to organisations and entities with unconventional titles or descriptions, urged the Court to draw the conclusion that the first defendant had created legal entitlements or protections which would defeat the plaintiff’s entitlement to possession of the Land. 

37 Contained in the First Defendant’s Affidavit are concepts which have been comprehensively dismissed by other Courts or which are so absurd so as to have no relevance to first defendant’s prima facie case. 

38 Without being exhaustive, and only to demonstrate the absurdity of the arguments advanced by the first defendant, I note that his affidavit contained 34 pages of the following (largely incomprehensible and unintelligible) types of statements:

On the date known “24th July 2024'” that Statement and Declaration of Truth/'”Affidavit” (Annexure “A”) was served on, amongst others, the living man known as “The Hon. Anthony Carbines MP”, acting as “MINISTER FOR POLICE”, the living man known as “Shane Patton APM”, acting as “Chief Commissioner”, POLICE DEPARTMENT (VIC), the living woman known as “The Hon. Jaclyn Symes MLC”, acting as “Attorney-General, Leader of the Government in the Legislative Council” “STATE OF VICTORIA-PARLIAMENT OF VICTORIA”, the living woman known as “Her Honour Judge Lisa Hannan”, acting as “Chief Magistrate” Melbourne MAGISTRATES COURT, and ... 

[11] What is unlawful ought not be entered under the pretext of legality “QUOD-EST­ILLICITUM, PRAETEXU-LEGALITATIS-NON-DEBET-INTROIRl” – (repeated at paragraph [16]) 

[12] The malicious designs of men must be thwarted “MALITIA-CONSILIA­ HOMINUM-FRUSTRARI-DEBENT” – (repeated at paragraph [17]) ... 

"72. As the Creator is the giver of all spiritual life and the creator of the living being, and whereas the living being is the creator and giver of life to the paper fiction known as the “person”, “Government”, “Corporation”, “Citizen”, and other non­living transmitting entities of fictional nature, a created fictional paper entity cannot rule over its creator an, as such, the ‘soul’, ‘Greenie’, and the living being we are incarnated into,’Paul Spencer’,of the tribe/family/house/clan “Greenman”, is not, and cannot be, under the jurisdiction of any man-created fiction ; and [sic] ... 

[20] “Universal Proclamation of Human Rights (UDHR) signed in Paris on 10 December 1948 (General Assembly resolution 217 A). ... 

[31] “QUOD-EST-ILLICITUM, PRAETEXU-LEGALITATIS-NON-DEBET­ INTROIRI” - What is unlawful ought not be entered under the pretext of legality ... 

[34] . The ‘soul’, ‘Greenie’, and the living being it incarnated into, ‘Paul -Spencer’, of the tribe/family/house/clan “Greenman”, renounce, rebut, disassociate and reject that any and all corporate entities masquerading as, or purporting to be, a “government”, including, but not limited to, the following; 

[35] “STATE OF VICTORIA - PARLIAMENT OF VICTORIA” [ABN 57 505 521 939] 

[36] and/or all of its/their trading names, and/or departments, and/or all of its employees, has any authority or jurisdiction over us in any way; ... 

[82] 126. In particular, the ‘soul’, ‘Greenie’, and the living being it incarnated into, ‘Paul-Spencer’, of the tribe/family/house/clan “Greenman”, unless we specifically contract, and that written and signed contract can be produced as proof on demand, do not acknowledge or consent that the corporate entity “POLICE DEPARTMENT (VIC)” [ABN 63 446 481 493] and/or all of its trading names, and/or all of its employees, has any authority or jurisdiction over us in any way; ... 

[89] 173. Any and all ‘”Courts” of “Australia” and/or any of its agents, is/are dismissed from ever assuming the role of “trustee” in any matters concerning the ‘soul’, ‘Greenie’, and the living being it incarnated into, ‘Paul -Spencer’, of the tribe/family/house/clan “Greenman”, and/or any trust accounts, including, but not limited to, “PAUL -SPENCER GREENMAN”, Estate, “PAUL E. GREENMAN”, Estate, “PAUL GREENMAN”, Estate, “GREENMAN, PAUL E.”, Estate, et alia, or any other such “CAPITAL-LETTERED” or lower case variation of such, in any way, including, but not limited to, the use of initials, prefixes, suffixes, titles, appendages, and the like, of/to which We, the ‘soul’, ‘Greenie’, and the living being it incarnated into, ‘Paul -Spencer’, of the tribe/family/house/clan “Greenman”, believe we am/are the “Principal” and “Executive Beneficiary”, and ... 

[97] 191. Anxiety caused by the actions of the aforementioned “Governments”, corporations, non-living entities and all the members/ employees/”officers” and agents of such, resulting in fear of harm, damage, loss or injury is here now sighted as unliquidable damages, the extent of which is to be determined by a competent assessor of the choosing of the living man “Paul -Spencer’, of the tribe/family/house/ clan “Greenman”; [98] “QUI-NON-NEGARE, ACCIPIT” - He who does not deny, accepts ... 

[100] The Statement and Declaration of Truth/”Affidavit” (Annexure “A”) has not been challenged nor rebutted; [101] “An-soluto-tabellam-dare-iudicium-in-Commerce” - An unrebutted affidavit becomes the judgment in Commerce ... 

[127] Notice of Legal Liability [128] This is a Non-Negotiable Self-Executing Contract [129] Any attempt by you, the aforementioned addressee, or any agent of/from any of the following entities: [130] “STATE OF VICTORIA - PARLIAMENT OF VICTORIA” trading as “PARLIAMENT OF VICTORIA” ABN 57 505 521 939 [131] “SUPREME COURT OF VICTORIA” ABN 32 790 228 959 [132] “SUPREME COURT OF VICTORIA PROPERTY LIST” trading name of “SUPREME COURT OF VICTORIA)” [ABN 32 790 228 959] [133] any corporate entity [134] who attempts to act in any unauthorised manner as executor of/for the aforementioned trust accounts administered through this Office of the Executor, will be taken, under this Notice of Legal Liability, and pursuant to Canon 2035, as to agreeing to pay the following remedy; [135] a) for “individuals”, living man or living woman; the remedy of One-Million US Dollars ($1,000,000 USD), or its equivalent, per infraction, payable within twenty­eights [sic] days of service as per the terms and conditions of that invoice, and [136] b) for “corporations”, “body politics” and/or “Government departments”; the remedy of Ten-Million US Dollars ($10,000,000 USD), or its equivalent, per infraction, payable within twenty-eights [sic] days of service as per the terms and conditions of that invoice, ... [27] PENHALLOW V DOANE ADMINISTRATORS (3US 54; 1 L.Ed 57; Dall N54) UNITED STATES SUPREME COURT RULING 1795 No corporation has jurisdiction over a natural man. "In as much as every government is an artificial person, an abstraction and a creature of the mind only, a government can interfere ONLY with artificial persons. The imaginary, having neither actuality nor substance, is foreclosed from creating and attaining parity with the tangible. The legal manifestation of this is that no government, as well as any law, agency, aspect, court, etc, can concern itself with anything other than corporate, artificial persons and the CONTRACTS between them". 

39 For completeness, I note a further document relied upon by the first defendant, namely the ‘Notice of Attendance Notice of Rebuttal of any and all Presumptions of Law - Notice to Principal is Notice to Agent - Notice to Agent is Notice to Principal’ also contained a jumbled mess of references to concept of the ‘Living Man’ together with a variety of legal maxims. Some examples contained in the 80 paragraphs set out in that 11 page document included:

[1] I, the living man “Paul-Spencer’, of the family/house/tribe/clan “Greenman”, am recorded as such with The People's Court of Terra Australis PC-LS-2917, and [2] I, the living man ‘Paul-Spencer’, of the family/house/tribe/clan “Greenman”, act in the belief I am principal and executive beneficiary of the non-living Cestui Qui Vie estate/trust “PAUL SPENCER GREENMAN”, also referred to as “GREENMAN, PAULS.” “Paul GREENMAN” “Mr. Paul GREENMAN” et alia, and [3] I, the living man ‘Paul-Spencer’, of the family/house/tribe/clan “Greenman”, act in the belief, according to The People's Court of Terra Australis (PC-FN-2916), that I am and the owner of the fictitious names “PAUL SPENCER GREENMAN”, “Paul GREENMAN”, “PAUL S GREENMAN”, “GREENMAN Paul”, et alia, and ... [5] I, the living man ‘Paul-Spencer’, of the family/house/tribe/clan “Greenman”, i am not illiterate, and [6] I, the living man ‘Paul-Spencer’, of the family/house/tribe/clan “Greenman”, i am no ignorant, and ... [8] I, the living man ‘Paul-Spencer’, of the family/house/tribe/clan “Greenman”, i am no lunatic, and ... [12] I, the living man ‘Paul-Spencer’, of the family/house/tribe/clan “Greenman”, i am of the belief and comprehension that the corporate entity “SUPREME COURT OF VICTORIA” may only hear Civil claims of disputes of contract in which both/all parties agree and consent to the corporate entity “SUPREMEN [sic] COURT OF VICTORIA” presiding over the matter, and ... [25] That the unchallenged affidavit stands as truth in law; Legal Maxim: “INEXPLICABILIS-LIBELLUS-PRO-VERO-IN­ COMMERCIUM” - AN UNREBUTTED AFFIDAVIT STANDS AS TRUTH IN COMMERCE. (12 Pet. l :25; Heb. 6:13-15;) Claims made in an affidavit, if not rebutted, emerge as the truth of the matter. ... [43] I, the living man ‘Paul-Spencer’, of the family/house/tribe/clan “Greenman”, being a living man, am Sui Juris ("SUI-JURIS"), Principal and Executive Beneficiary of the non-living Cestui Qui Vie estate/trust “PAUL SPENCER GREENMAN” do not consent, nor agree, to any “Acts”, “Legislation”, “Rules” “Directions”, and/or “Demands”, and ... [57] I, living man ‘Paul-Spencer’, of the family/house/tribe/clan “Greenman”, am not a dead entity that is “summonsed” to life via magic or spells, and ... [74] The “Judge/Magistrate/Justice” claiming to preside in the matter “S ECI 2024 04778”” has no right, nor authority, from me, the living man ‘Paul­ Spencer’, of the family/house/tribe/clan “Greenman”, to assume the role of “true” executor and has no right to seek the assistance of police, bailiffs or sheriffs to assert their false claim and have me, the living man ‘Paul-Spencer’, of the family/house/tribe/clan “Greenman”, arrested, detained, fined or forced into a psychiatric evaluation, and ... [79] I, the living man ‘Paul-Spencer’, of the family/house/tribe/clan “Greenman”, rebut, rebuke and reject any and all presumptions that the matter “S ECI 2024 04778” listed on the date known as “25/10/2024” before the “SUPREME COURT OF VICTORIA ABN 32 790 228 959” is a private business meeting of the Bar Guild, and rebut reject and rebuke any and all presumptions of “guilt”, and 

40 A further document relied on by the first defendant, being the ‘Proclamation of the establishment of Office of the Executor of Paul Spencer Greenman’ similarly contained yet more gibberish relating to the ‘Living Man’ whereby the first defendant purported to proclaim, amongst other matters, that he is:

Pursuant to the unchallenged and unrebutted Statement and Declaration of Truth/”Affidavit” of the living man ‘Paul Spencer, biological creation of Bert and Margaret, being of the family “Greenman”, made the date known Twenty-Fourth of June Two-thousand­Twenty-Four (24/06/2024) and served on, amongst others, “Theresa Fairman, Director and Registrar” “REGISTRY OF BIRTHS, DEATHS AND MARRIAGES NSW” on the date known as Ninth of July Two-thousand-Twenty-Four (09/07/2024), and, as such, being of the belief and understanding that I, the living man ‘Paul Spencer, am the sole beneficiary of all trust accounts created by “State” of “NEW SOUTH WALES” from the “BIRTH CERTIFCATE” “REGISTRATION NUMBER 44280/1968”, Barcode numbers 066904720241723409087235/ 06690472024/ 30004479978, Re: “GREENMAN, Paul Spencer” “Date of Birth” 23 March 1968” “Date of Registration” “10 April 1968” , I, the living man ‘Paul Spencer’, biological creation of Bert and Margaret, do proclaim; (a) I, the living man ‘Paul Spencer’, am not “Lost at See/Sea” and (b) I, the living man ‘Paul Spencer’, have the capacity to act as Executor of all associated aforementioned trust accounts, and ... 

41 Finally, at the hearing before me, the first defendant read onto the transcript a document headed ‘Notice of Intervention’ dated 23 October 2024 which was in the following terms consistent with the previous pseudo-legal nonsense the first defendant had submitted:

[1] The living man ‘Paul Spencer’, of the family “Greenman” attempted to file an Interlocutory and Affidavit with the “SUPREME COURT of VICTORIA” in coherent English, readable and complete, and [2] The living man ‘Paul Spencer’ of the family “Greenman” has attempted to file an Interlocutory and Affidavit with the “SUPREME COURT of VICTORIA”, and were refused based on format and wrong form, and [3] All of the “SUPREME COURT of VICTORIA” documents and forms contain Glossa, which is Debased Latin rendering them Criminal and Counterfeit, and [4] The “SUPREME COURT of VICTORIA” requires the living man ‘Paul Spencer’, of the family “Greenman”, to commit fraud in order to accept document for filing, and [5] The “RedCrest Online Portal” only permits fictional entities to file, therefore... [6] Agents of the “SUPREME COURT of VICTORIA” have committed personage and barratry, and [7] The grounds unanimously determined, by a jury of the people, 23-0 that The People’s Court of Terra Australis intervene in the matter “S ECI 2024 4778” before the “SUPREME COURT of VICTORIA” for the purpose of ensuring justice and fairness, and judicial processes are adhered to, and [8] This matter is hereby transferred from, and out of, the jurisdiction of the Magistrates/County/District/Supreme Court to The People’s Court of Terra Australia (Australasia) listed for the date known as “Friday, 22nd November 2024” 

42 The ‘Notice of Intervention’ was purportedly signed by both the ‘Attorney-General’ and a ‘Registrar’. During the hearing when I asked the first defendant who had signed the document, he declined to tell me. It is apparent looking at the document that it was not signed by either the Victorian or Commonwealth Attorneys General or by any Registrar or officer of the Supreme Court of Victoria. The document otherwise purported to unilaterally transfer the proceeding and plaintiff’s application from the Supreme Court of Victoria to the ‘People’s Court of Terra Australia (Australasia)’ on 22 November 2024. The proceeding before me was not transferred and is not the subject of a further hearing on 22 November 2024. 

Analysis 

43 Taking it at its highest, the first defendant’s case appears, as set out in his various submissions and in his affidavit, to rely on an argument that the plaintiff has no legal entitlement to possession as legal owner because the Land was legally transferred to a trust and, as trust property, it is immune from being considered as part of the bankrupt estate. 

44 The documents said to be evidence of the trust before me were the subject of consideration by Quigley J in the 2023 Proceeding in which her Honour dismissed the VCAT appeal. 

45 In that proceeding, Mr Harffey sought to advance a similar argument that the Land was the subject of an express trust in his favour. In considering similar alleged trust documents, Quigley J concluded that she was not satisfied that the Bankrupt had made a valid transfer of the legal ownership of the title to the Land to any trust entity, stating that there was no competent evidence before the Court to demonstrate the legal transfer of the Land to any trust entity. Her Honour went on to quote Marchesi v Apostoulou (‘Marchesi’) where Weinberg J considered the law in which equity will recognise the assignment of property without consideration. The question in that case was whether a ‘gift’ to a family trust was ‘perfected’ in accordance with the principles established by the High Court in Corin v Patton.[8] That is, whether the bankrupt did all that was necessary to arm the donee with the capacity to register the titles in the name of the trustee of the trust. 

46 Weinberg J held at paragraph 25 that the position was settled by the High Court in Corrin v Patton quoting Mason CJ and McHugh J:

Where a donor, with the intention of making a gift, delivers to the donee an instrument of transfer in registrable form with the certificate of title so as to enable him to obtain registration, an equity arises, not from the transfer itself, but from the execution and delivery of the transfer and the delivery of the certificate of title in such circumstances as will enable the donee to procure the vesting of legal title in himself. 

47 I respectfully adopt the analysis of both Quigley J and Weinberg J. The documents supplied by the first defendant to support the Caveat do not establish that the Land is an asset of any trust, whether express, implied, resulting or constructive. The ‘Acceptance of Office – “Special Trustee”’ document simply accepts an appointment as a trustee to an express trust, the details of which are not supplied. The ‘Certificate of Trust Affirmation’ appears to ‘affirm’ a prior trust, rather than prove the establishment of any trust, or the conveyance of the Land to that trust. The attached Trust Schedule does not advance matters. The subsequent documents provided by the first defendant to the Court in addition to his affidavit similarly do nothing to establish that the Land is an asset of any trust, whether express, implied, resulting or constructive. 

48 Further, the trust being contended for is said to have been created in 2017. Critically for the first defendant, there is no evidence showing that the Bankrupt, whilst he was the registered proprietor of the Land, took any steps to create a trust or to gift the Land to any trust. The Bankrupt remained the registered proprietor of the Land until well after, his bankruptcy on 26 September 2019. The plaintiff holds the legal title to the Land by reason of the Bankruptcy Act and has possession by reason of an order made by the Federal Court of Australia on 5 July 2022. 

49 The is no evidence of a transfer being executed, or stamp duty being paid, or the consent of the mortgagee, Australia and New Zealand Banking Group Limited, being sought or obtained, noting that these elements were present in Marchesi and the Court still found that the purported gift of the property in the trust had failed. The documents supplied by Einsiedels on behalf of the first defendant were nothing more than pseudo-legal gibberish. The documents filed by the first defendant with this Court, including his affidavit, are similarly incomprehensible gobbledygook. ... 

 Conduct of the first defendant 

52 Whilst the first defendant’s legal arguments were without any merit, and can all be aptly described as arrant nonsense, it is appropriate nonetheless that I say something further about the documents he filed (including correspondence advanced on his behalf by his former lawyers, Einsiedels) and his submissions at the hearing before me (to the extent that they could be classed as submissions), lest any other Court is required to consider such absurdity in the future. Living Man 

53 In Stefan v McLachlan, John Dixon J comprehensively dealt with the fatuous concept of the ‘Living Man’. At paragraphs 23 to 26 his Honour held:

The law recognises a living person as having status in law and any person is, in this sense, a legal person. Conceptually, there may be differences between the legal status of a person and that of an entity that is granted a like legal status, but what ever they might be they have no application on this appeal. In asserting that he is a ‘living man’, the appellant does no more than identify that he is a person, an individual. Every person, every individual, and every entity accorded status as a legal person is subject to the rule of law. There are no exceptions in Australian society. It is plainly wrong to assert that a natural person is not subject to statute law, only to common law and the principles of equity. All persons are subject to all law whether its source be the Constitution, statute, or judge made law. No distinction can be made by using an analogue, such as ‘living man’ for ‘person’. There was no legal significance in the informant’s agreement with the appellant’s proposition in cross-examination that he was a ‘living man’. That conclusion was, and remained, blindingly obvious. A like argument was also based on the notion that the living man is created by God and not by the State and the Australian Constitution does not grant legislative power to the Parliament of Australia to affect the rights of the living man. No support can be found for such notions by reference to style guides, as the appellant sought to do, to draw inferences from obscure facts. In this case, the appellant noted that his name was printed on his driver’s licence wholly in capital letters. Such irrelevant matters cannot impugn the jurisdiction of a magistrate under the Road Safety Act. The appellant also advanced a like proposition that seems to have developed some momentum as a ‘sovereign citizen defence’, based in some way on notions of freedom to contract with others, as developed in a commercial context. The defendant contends that a living man is only answerable to those articles of law and legal proceedings to which he or she has consented. The contractual notion that the appellant alluded to has no role in public law in the manner suggested. Regulatory schemes legislated by Parliament do not require the consent of every individual for the law to apply to that individual. There is no contract and nor does the authority of the Parliament to pass such laws come from a sovereign, notwithstanding that the legislative power of the State is vested in the King and the Parliament of Victoria. The ‘consent’ of Victorians to statute law, in the sense in which the appellant used the expression, follows from the election of parliamentarians to make laws for the peace, order and good governance of the State and their subsequent exercise of that legislative power.

 54 I respectfully adopt the helpful analysis by John Dixon J and reject, in their entirety any submission by the first defendant which relies on concepts of the ‘Living Man’. 

55 I otherwise note that before me, the first defendant sought to class himself as the ‘Living Man’ in order to create a different identify from that of the person named in the Court proceeding as the first defendant. It is not without some degree of irony that, on the one hand, the first defendant sought to rely on the legal protections afforded by reason of lodging the Caveat over the Land in the name of Paul Spencer Greenman but simultaneously sought to divorce himself from that persona when his conduct in lodging the Caveat was subject to challenge. 

56 In Re Coles Supermarkets Australia Pty Ltd,[12] Hetyey AsJ similarly considered the ‘Living Man’ stating (citations omitted):[13] The defendants appear to be seeking to draw a distinction between themselves as ‘natural’ or ‘living’ persons, on the one hand, and their status as ‘legal’ personalities, on the other. However, contemporary Australian law does not distinguish between a human being and their legal personality. Any such distinction would potentially leave a human being without legal rights, which would be unacceptable in modern society. The contentions put forward by the defendants in this regard are artificial and have no legal consequence. 

Unilateral agreements 

57 Hetyey AsJ went on to also consider unilateral contracts, a concept advanced by the first defendant who suggested that his alleged interest in the Land would be taken as having been established if certain of his various notices and declarations were not rebuffed within arbitrarily set timeframes. Relevantly, for the purpose of the arguments advanced before me I respectfully adopt his Honour’s observations as follows (citations omitted): It is a fundamental principle of contract law that an offeree’s intention to accept an offer must be clear and unequivocal. However, because silence is almost always equivocal, it will rarely be regarded as acceptance. As the Court of Appeal further explained in Danbol Pty Ltd v Swiss Re International SE: The requirement for acceptance, which must be communicated by the offeree to the offeror, is subject to a number of principles. First, as a general rule, silence cannot constitute acceptance. The rule is primarily designed to protect the offeree from having a contract foisted upon it by preventing the offeror from stipulating that a contract will be created by silence on the part of the offeree. It is a reflection of the requirement for mutual assent. The Court of Appeal further observed that in the absence of a clearly identified offer and acceptance, it will be difficult for a party to identify mutual assent to a binding legal relationship and its terms. 

Other submissions 

58 During the hearing before me, the first defendant refused to give his appearance. Rather he repeatedly stated that ‘I am Paul Spencer, acting in the capacity of the officer of executor for the so-called defendant 1’,[15] and ‘I’m the occupant of the office of executor for the defendant 1 and I will be heard’.[16] Thereafter, he refused to give his appearance instead repeating loudly ‘permission to come aboard’[17] as though those words carried with them some unique legal meaning, which they do not. Subsequently, five submissions were advanced by the first defendant. 

59 First, he submitted that there was no legal merit in the Court.[18] No further submission was made in this respect. I reject the submission. 

60 Second, he contended that the Supreme Court, all capitals, as the seal is ... with an ABN 32 790 228 959, did not have authority or jurisdiction over, Paul Spencer, the occupant of the office of executor.[19] There is no concept known to the law of ‘the occupant of the office of executor’ such that this Court would not have jurisdiction to hear an application for the removal of a caveat. I reject the submission. 

61 Third, he contended that there was some limit on the Court’s ability to hear the matter until it was determined whether the Court was a public space or a private Bar guild space.[20] This concept also appeared in the various documents filed by the first defendant. This submission is irrelevant to the issues I am required to determine, it lacks any legal merit and is rejected. 

62 Fourth, he contended there was some limit on the Court’s ability to hear the matter until it was determined whether I was a public servant and the source of my power to hear the application.[21] The power of an Associate Judge of this Court to hear and determine an application under s 90(3) of the TLA is not controversial. The source of power for Associate Judges of this Court was comprehensively addressed by Keogh J in Goodenough v State of Victoria.[22] I reject the first defendant’s submission. 

63 Fifth, he had sought to file a ‘Notice of Intention’ the effect of which was, as I understand the submission, to remove jurisdiction from the Supreme Court of Victoria to hear and determine the application and vest the jurisdiction to determine the application with a court called ‘the People’s Court of Terra Australis’ with the submission put in the following terms:[23] One, by the living man Paul Spencer of the Family Greenman attempted to file an interlocutory and an affidavit with the Supreme Court of Victoria, all capitals, in coherent English, readable and complete and two, the living man Paul Spencer of the Family Greenman has attempted to file interlocutory and affidavit with the Supreme Court of Victoria, all capitals, and were refused based on format and wrong form. And three, all of the Supreme Court of Victoria, all capitals, documents and forms containing glosser which is debased Latin rendering them criminal and counterfeit. And four, the Supreme Court of Victoria, all capitals, requires the living man, Paul Spencer of the Family Greenman to commit fraud in order to accept the documents for filing. Five, the RedCrest online portal only permits fictional entities to file. Therefore coercing the living man to commit fraud so as to file documents as the person, which I am not. And six, agents of the Supreme Court of Victoria, all caps, have committed personage and barratry. Seven, the grounds unanimously determined by a jury of the people 23 to zero, 23 for zero against, that the People’s Court of Terra Australis intervene in the matter S ECI 2024 4778 before the Supreme Court of Victoria, all caps, for the purpose of ensuring justice and fairness and judicial process are adhered to. And eight, this matter is hereby transferred from and out of the jurisdiction of the Magistrates’ Court, County Court, District Court, Supreme Court to the People’s Court of Terra Australis for a de novo hearing before the People of Terra Australis, listed for the date known as Friday, 22nd of November 2024. And it is dated, date known as 23rd of October 2024, signed and sealed by Attorney General, Registrar and the People’s Court. 

64 As noted above, the first defendant refused to tell me the identity of the person who had signed the documents he filed in the name of the Attorney-General. Further, he refused to tell me where ‘the People’s Court of Terra Australis’ would be sitting other than to say it would be in ‘in exactly the same place as the Supreme Court of Victoria, all caps, does’.[24] 

65 Having made reference to ‘the People’s Court of Terra Australis’, the first defendant informed me that he had ‘just changed where this [proceeding] is going to be heard’[25] and that the Court was a ‘fraud’[26] and that I did ‘not have [his] consent or permission to continue’[27] with the hearing. I rejected that contention and informed the first defendant that I intended to hear and determine the application. No further submissions were advanced by the first defendant and none of the submissions (to the extent they could be characterised as such) made by the first defendant at the hearing before me were addressed to the establishing a prima facie case such that the Caveat ought not be removed. 

The People’s Court of Terra Australis 

66 ‘The People’s Court of Terra Australis’ appears to be a recent invention which seeks to give itself legitimacy thought the operation of a website “thepeoplescourtofterraaustralis.org”, established in mid-2022. On that website can be found a pseudo coat of arms/court seal and various pro-forma documents some of which were relied on by the first defendant. A brief review of those documents suggests that they are nothing more than a series of random statements copied from other sources and cobbled together into supposed official looking documents. No doubt the pseudo coat of arms/court seal have been included to provide some air of legitimacy to the alleged court. It is sufficient to observe that the inclusion of a made up coat of arms/court seal for a made up court does not legitimise the court or the arguments advanced by the first defendant. Any suggestion that ‘the People’s Court of Terra Australis’ has any legal status, authority or standing in Victoria or indeed Australia ought to be denounced in the strongest possible terms as should the content on its website. I reject that it has any validity, application or relevance to the proceeding before me. 

Pseudo-law concepts 

67 Pseudo-law concepts such as those raised by the first defendant before me are by no means new. In their recent article, ‘The Internationalisation of Pseudolaw : The Growth of Sovereign Citizen Arguments in Australia and Aotearoa New Zealand’,  the authors Hobbs, Young and McIntyre tracked the development of pseudo-law describing it in the following terms (citations omitted): The term ‘ pseudolaw ’ refers to a distinct phenomenon whereby ‘a collection of legal-sounding but false rules that purport to be law’ are deployed. Pseudolaw ‘superficially appears to be law, or related to law, and usually uses legal or legal-sounding language, but is otherwise spurious’. For this reason, it is regularly described by courts as nothing more than ‘obvious nonsense’, legal ‘gibberish’, or ‘gobbledygook’. However, while pseudolaw is ‘largely incoherent, if not incomprehensible’, and impenetrable to outsiders, it is not just a misunderstood and misapplied collection of doctrines, instruments, and rules. Pseudolaw is an ‘integrated and separate legal apparatus’ with its own confounding legal theories. Much of the source material is originally drawn from conventional law and legal sources, but it constitutes an ‘alternative legal universe’. 

68 The Courts have, particularly over recent years, seen an increase in the number of these types of arguments stemming from a fanciful legal universe that seems to have proliferated largely online. 

69 Examples include:

(a) newly created credit and book entries, promissory notes, assignment of a reversionary interest in one’s birth certificate, the ‘Living Man’, the ‘Straw Man’, the capitalisation of a person’s name alleged to constitute a ‘corporation trust’ and acceptance for value in Bendigo and Adelaide Bank Limited v Grahame; 

(b) an authenticated birth certificate as a security in Aidan Llewellyn trading as the Trustee for the House of Llewellyn v State of New South Wales, 

(c) the ‘Living Man’ and the capitalisation of a person’s name alleged to constitute a ‘corporation trust’ in Yap v Matic;[31]  

(d) the ‘Living Man’ in Stefan v McLachlan, Re Coles Supermarkets Australia Pty Ltd, Deputy Commissioner of Taxation v Bonaccorso (No 2), Deputy Commissioner of Taxation v Bonaccorso (No 3), and Palmer v No Respondent; 

(e) the ‘Living Man’, ‘wet ink contracts’ and the Supreme Court being an alleged ‘fiction’ in Commonwealth Bank of Australia v Moir; 

(f) Turnbull v Clarence Valley Council, where the Court considered: (i) alleged international frauds and conspiracies (including one from the 1960s and involving secret IMF banking policies to control the global financial system and all governments under a world government and another allegedly pursued by Australian prime ministers, to remove the people from the Commonwealth of Australia); (ii) the ‘Living Man’ including assertions of universal sovereignty, deficiencies in birth registration, personage flowing from the Creator, and claimed violations of the Universal Declaration of Human Rights; and (iii) a notice issued to Council by the Velvet Revolution, which the plaintiff claimed evidenced service of a moratorium on all Local Council members, charging them with misprision of treason, which rested on which rested on the Crimes Act 1914 (Cth), UK legislation, the Nuremburg Code, Helsinki Code and Magna Carta, as well as claimed inalienable rights; 

(g) sovereign citizens generally in Bradley v The Crown,[39] and State of New South Wales v Hardy (Final);  

(h) the ‘Straw Man’ in Kelly v Fiander; and 

(i) secession and the ‘Straw Man’ in Deputy Commissioner of Taxation v Casley. 

70 Like many of the previous iterations by sovereign citizens that have been comprehensively rejected before, the first defendant’s arguments before me concerning the ‘Living Man’ and ‘the People’s Court of Terra Australis’ were nothing more than carnival of absurdity drawn from a mishmash of delusional arguments. Whilst it may be tempting to simply dismiss these claims as nonsense, gibberish, gobbledegook or like, in doing so that should not diminish from the serious impact these delusional arguments can have on the authority of the Court. 

71 In Yap v Matic (No 4), Solomon J described the danger of these type of arguments in the following terms:

There are aspects of the views of that movement that have come before this and other courts, including some of the views expressed by this defendant, which reflect a rejection to one degree or another of the court's authority. Those views, and their apparent increasing popularity, or acceptance, cannot be dismissed as harmless or bemusing nonsense. The promulgation of such views and beliefs represents a dangerous corrosion of some of our society's most fundamental values in the maintenance of the rule of law and the administration of justice 

72 In Yap v Matic (No 7), Solomon J expressed similar concerns in respect of the sovereign citizen movement, stating: 

This is a movement that has been gaining popularity and traction in Australia over the last few years but has also been prolific in other jurisdictions for longer. The growing prevalence of this class of beliefs and associated conduct is a matter of concern for the preservation of the authority of the court and the administration of justice... 

73 I respectfully adopt the concerns expressed by Solomon J. 

74 Similarly, the waste of limited Court resources in having to deal with pseudo-legal concepts should likewise be denounced. 

75 Observations have been made by judges in other cases pointing to the waste of scarce judicial resources involved in addressing the pseudo-legal claims of sovereign citizens, ‘living persons’ or other such incarnations. 

76 In Rossiter v Adelaide City Council, Livesey J said (citations omitted):[48] Various terms have been used to describe “pseudolegal arguments” such as those advocated by the appellant in this case. They have without reservation been rejected as involving both legal nonsense and an unnecessary waste of scare public and judicial resources. So too here. 

77 In Re Magistrate M M Flynn; Ex parte McJannett,[49] McKechnie J said:[50] Finally, judges administer justice according to law. They are not required to expend judicial time, a scarce public resource, on applications that have no legal foundation and involve deluded understanding of the law. 

78 I wholly agree with and adopt those criticisms.

Digital Assets

The UK Law Commission's Digital assets as personal property: Short consultation on draft clauses states 

Digital assets are fundamental to modern society and the contemporary economy. They are used for an expanding variety of purposes — including as valuable things in themselves, as a means of payment, or to represent or be linked to other things or rights — and in growing volumes. 

1.2 In our recent work on digital assets, we considered how principles of private law, specifically personal property law, apply to digital assets. Personal property rights are important for many reasons. They are important in cases of bankruptcy or insolvency, in cases where objects of property rights are interfered with or unlawfully taken, and for the legal rules concerning succession on death. They are also important for the proper characterisation of numerous modern and complex legal relationships, including custody relationships, collateral arrangements and structures involving trusts. Property rights are powerful because, in principle, they are recognised against the whole world, whereas other — personal — rights (such as contractual rights) are recognised only against someone who has assumed a relevant legal duty. 

1.3 We published our final report on digital assets in June 2023. We concluded that certain types of digital assets are capable of being things to which personal property rights can relate, even though they do not easily fit within the traditional categories of personal property, and are better regarded as belonging to a separate category. We recommended legislation to confirm the existence of a “third category” of personal property rights, capable of accommodating certain digital assets including crypto- tokens. ... 

1.5 The draft clauses that accompany these notes implement the recommendation about personal property set out in our June 2023 report. This short, limited consultation exercise is designed to test whether the draft clauses successfully implement the recommendation we made in our report. We also ask about potential impact, and are keen to receive views on costs and benefits, and any potential unintended consequences, in order to inform the Government’s decision on whether to proceed to implementation. We do not ask further questions on the underlying policy, which has already been the subject of consultation. ... 

AIMS OF THE DRAFT BILL 

1.8 The intended effect of the draft Bill is to confirm that crypto-tokens, and potentially other assets such as voluntary carbon credits, are capable of being recognised by the law as property. This will enable courts to determine a number of issues, including, for example, in the following situations. (1) If digital assets are the subject of a legal dispute and there is a danger of their holder dissipating them before that dispute can be resolved, a court can, if these assets are classed as property, order a proprietary freezing injunction over them to prevent this. These remedies exist for things already recognised as property; as yet, it is an open question whether they are available in relation to digital assets. (2) If someone’s digital assets are taken from them or destroyed, the remedies available to them are significantly stronger if those assets are regarded as being their property than if the law does not recognise any property interest in them. Currently, there is a considerable and growing market in such assets and most investors (commercial and private) presume that, when they buy them, they acquire property rights in the same way as they do when they buy, say, a watch or a laptop. As the law currently stands, it is not necessarily the case that they do. 

1.9 The common law has answered some questions in relation to some kinds of digital assets, but the result is, inevitably, both piecemeal and vulnerable to different judicial approaches in the future. The draft Bill would definitively lay to rest any lingering doubt about the existence of a third category of property accommodating the unique nature of digital assets, setting the future direction of the law in favour of commercial certainty and confidence. 

1.10 Members of the judiciary themselves suggested to the Law Commission that the recommended legislation would be a useful tool in developing the law in this area. ...

Legal background 

2.1 “Property” can be divided into real property (interests in land) and personal property (interests in other things). The law of England and Wales traditionally recognised two distinct categories of personal property rights: rights relating to “things in possession” (tangible things), and rights relating to “things in action” (legal rights or claims enforceable by action). A 19th century case, Colonial Bank v Whinney, is often used as authority for the proposition that these two categories of personal property are exhaustive so that anything that is an object of personal property rights must fall within one of these two. 

2.2 Court decisions over the last ten years show that the common law of England and Wales has moved toward the recognition of a “third” category of things to which personal property rights can relate but which do not fall easily within either of the two traditionally recognised categories. Initially, this development was in response to emergent forms of intangible things such as milk quotas;5 more recently, it has been in response to crypto-tokens. 

2.3 A strong majority of our consultees agreed that either a third category of things to which personal property rights can relate has already developed in England and Wales at common law, or that, to the extent it has not, one should be recognised as existing. Some consultees, including senior and specialist judges, said to us that the explicit recognition of such a category would confirm the existing law, facilitate the law’s future development and lay to rest any lingering doubt about the existence of such a category. 

2.4 In this chapter, we briefly explain the legal background to, and reasons for, our recommendation. In the next chapter, we introduce the draft Bill and explain what it does – and what it does not do. 

Property 

2.5 Colloquially, the term “property” is used interchangeably to describe both a thing, and a claim or entitlement to that thing. However, in a stricter legal sense, the term describes a relationship between a person and a thing, and not the thing itself. For example, in the phrase “that phone is my property”, the object (the thing) is the mobile phone. The property rights are the rights that a person has in relation to that mobile phone. 

2.6 Even in legal writing such as academic papers, cases and statutes, the term property is sometimes used in its broader, more colloquial sense or as a shorthand term, and we also use it in this way from time to time. However, the draft Bill refers to an “object of property rights”. 

Third category / third thing 

2.7 In our report, and in this paper, we use the term “third category” to describe a category of thing distinct from both things in possession and things in action. In adopting this terminology, we acknowledge the argument that other distinct categories of things to which personal property rights can relate might already exist at law (including patents and statutorily created intellectual property rights). We adopt the term “third category” as shorthand: in part, as a direct reference to Lord Justice Fry’s influential judgment in Colonial Bank v Whinney and the longstanding practice among lawyers and judges of referring to the things in possession/things in action dichotomy; and in part as a convenient and readily understandable term, which almost all consultees were comfortable with. We deliberately do not, however, use the term in the draft legislation. 

THINGS IN ACTION AND THINGS IN POSSESSION 

2.8 By way of background, it may be helpful to expand briefly on the two categories of personal property traditionally recognised by the law of England and Wales: (1) Things in possession are, broadly, any object that the law considers capable of possession. This category includes assets which are tangible, moveable and visible, such as a bag of gold.  Possession of a thing gives its possessor a property right which is enforceable against the world.  Rights in things in possession can be asserted by use and enjoyment as well as by the exclusion of others from them.  Things in possession exist regardless of whether anyone lays claim to them, and regardless of whether any legal system recognises or is available to enforce such claims. (2) Things in action are, traditionally, any personal property that can only be claimed or enforced through legal action or proceedings. Common examples of things in action are debts, rights to sue for breach of contract, and shares in a company. Things in action have no independent form and exist only insofar as they are recognised by a legal system. This means that the presence of a thing in action in the world is dependent on there being both a party against whom the thing in action (the right) can be enforced and a legal system willing to recognise and enforce that right. The category of things in action is sometimes given a much broader meaning as a residual class of personal property — that is, it is sometimes regarded as encompassing any personal property that is not a thing in possession. 

2.9 Things in possession and things in action are susceptible to different types of legal treatment. 

2.10 In the 1885 case of Colonial Bank v Whinney, Lord Justice Fry said:  All personal things are either in possession or in action. The law knows no tertium quid [third thing] between the two. 

2.11 Although this statement has largely been taken as reflecting the correct position in law, it is almost certainly no longer correct (to the extent that it ever was). As Professor Fox and Professor Gullifer observed in their joint response to our call for evidence: The reasoning in [Colonial Bank v Whinney] turned on the interpretation of the bankruptcy statutes then in force. It has been taken out of context and used as authority for a proposition that it [was] not meant to support. 

Digital assets as things in possession or things in action 

2.12 Digital assets do not sit easily in either of the traditionally recognised categories of things in possession or things in action (at least in the narrow sense). They are not tangible things in the normal sense, meaning that courts are likely to feel unable to find that they are things in possession.  Nor are they claimable or enforceable only by legal action or proceedings. Crypto-tokens would continue to exist even if the law were to fail to recognise them as objects of personal property rights and even were a law to prohibit their existence.18 Their useful characteristics and the ability of people to use, enjoy and interact with them (and exclude others from them) would also continue to exist: the functionality of the crypto-token system would remain unaffected. They therefore function more like objects in themselves. 

2.13 Some digital assets, such as crypto-tokens, might represent, record, or be linked to other things (including legal rights – that is, things in action) which are external to that particular crypto-token and/or crypto-token system. In our work, however, we concluded that the better view is that a crypto-token is a thing in itself to which personal property rights can relate, regardless of whether it is also linked to another thing. Specifically in respect of crypto-tokens, almost all consultees agreed that crypto-tokens cannot be conceived of as merely rights or claims in themselves and that they can be used and enjoyed independently of whether any rights or claims in relation to them are enforceable by action. Further, the use or enjoyment of a thing in action is dependent entirely on the enforceability of the right or claim of which it is constituted. That is not true of crypto-tokens, for example. This is the crucial distinction that needs to be made for proprietary classification purposes.  

2.14 Crypto-tokens and certain other digital assets can be used and enjoyed independently of whether any rights or claims exist in relation to them. Moreover, any property rights in relation to them can be asserted by use and enjoyment of the thing and by the exclusion of others from it. This is one of the fundamental underlying innovations of crypto-tokens, because it is all achieved through software where this was not previously possible. 

2.15 It is this quality of digital assets, as things independent of the rights that relate to them, that makes them susceptible to involuntary alienation. This is relevant to a proprietary classification because it helps to distinguish between the legally relevant characteristics of different things. A debt, for example, as a thing in action, cannot be alienated from a person without a legal process (usually one which requires that person’s consent). A crypto-token, on the other hand, as a thing in possession like a car or a watch, can as a matter of fact be alienated from a person without a legal process and without their consent. 

2.16 So, despite the longstanding existence of two categories, the courts have consistently concluded that certain things (often digital assets) are capable of being objects of personal property rights, even where the thing in question does not neatly fit within either of the traditionally recognised categories of thing to which personal property rights can relate. The courts have done so, either expressly or impliedly, in respect of milk quotas,  European Union carbon emission allowances (“EUAs”),  export quotas,  waste management licences,  and a wide variety of crypto-tokens, including non-fungible tokens (NFTs). 

2.17 In the recent case of AA v Persons Unknown, the High Court of England and Wales said that “[cryptocurrencies] are neither [things] in possession nor are they [things] in action”.  Nonetheless, in that case, the court held that cryptocurrencies were a form of property.  Mr Justice Bryan said that it would be “fallacious” to proceed on the basis that the law of England and Wales recognises no form of property other than things in possession and things in action. He explicitly recognised the difficulty in the classification of crypto-tokens (which, on their face are things which are neither things in action nor things in possession). He held that a crypto-token could be an object of personal property rights even if it was not a thing in action in the narrow sense. 

2.18 The Court of Appeal has said that “a cryptoasset such as bitcoin is property” under the law of England and Wales. This is also affirmed, or necessarily implicit, in at least 23 other cases decided at first instance, although most were decided in connection with interim relief. 

2.19 Since the judgment in AA v Persons Unknown was handed down in 2019, courts in at least 14 of those 23 cases, including the Court of Appeal,31 have cited that judgment in support of the proposition that the digital asset in question is a thing which is capable of being an object of personal property rights. 

2.20 Taken together, the case law demonstrates that the courts of England and Wales now recognise crypto-tokens as distinct things which are capable of being objects of personal property rights. Further, through the consistent application of AA v Persons Unknown (as opposed to any contrary approach), courts have deliberately proceeded in a manner that carves out a third common law-based category of thing to which personal property rights can relate. 

2.21 Courts in other jurisdictions have reached the same (or a similar) conclusion. Courts across the common law world, including in Australia, Canada, Hong Kong, New Zealand, Singapore, and the United States, now consistently proceed on the basis that crypto-tokens are capable of being objects of personal property rights and are therefore susceptible to the various consequences that follow.  This includes recognition that crypto-tokens can be subject to an interlocutory proprietary injunction, are capable of being held on trust and fall within certain broad statutory definitions of “property”. 

2.22 Examples of this can also be seen in some civil law-based systems, including Japan, Liechtenstein, and Switzerland. 

2.23 Our conclusions are also consistent with international law reform developments, including those that are intended to be applicable in civil law jurisdictions. The UNIDROIT Working Group recently published a set of international principles,  which set out a proprietary framework applicable to digital assets.  The UNIDROIT Working Group Principles apply to “electronic records”, of which digital assets are a sub-set.  In effect, the Principles apply proprietary concepts to a category of things distinct from things in possession and things in action. 

OUR RECOMMENDATION: STATUTORY CONFIRMATION OF A “THIRD THING” 

2.24 We have therefore concluded that a thing is not, and should not be, deprived of legal status as an object of personal property rights merely by reason of the fact that it is neither a thing in action nor a thing in possession. We recommended the explicit recognition, in statute, of a third category of personal property, to encourage a more nuanced consideration of new, emergent things. A distinct, third category will better allow the law to focus on attributes or characteristics of the things in question, without being fettered by analysis or principles applicable to other traditional objects of personal property rights. As discussed below, we consider that such things include, but are not necessarily limited to, crypto-tokens such as bitcoin. 

2.25 Although it may not change the common law position,  we conclude that such a statutory confirmation will provide greater legal certainty and will allow the law to develop from a strong and clear conceptual foundation. A statutory confirmation will alleviate any lingering judicial concern surrounding Colonial Bank v Whinney or any concern that recognising a third category is not an appropriate development for the common law to make.  The exact parameters which describe a third category thing, and the legal treatment afforded to such things, will be matters for common law. There are centuries of case law considering the factors that make a thing an appropriate object of personal property rights, which the courts can continue to apply in this context so that the third category does not become inappropriately broad. We consider this to be the most effective and least interventionist recommendation that we can make to facilitate the law’s development on this point. 

2.26 A statutory confirmation will explicitly recognise the reality that in the modern world there exist things that are neither purely intangible rights nor conventionally tangible objects, and that the law is capable of treating those things as objects of personal property rights. This in turn will allow the law of England and Wales to discuss crypto- token systems (and other systems that might manifest third category things) more directly in terms of powers and incentives/incentive mechanisms of participants, rather than in terms of claims/rights, corresponding duties and obligations.  It also means that the category of things in action can remain usefully distinct and descriptively accurate. 

2.27 A statutory confirmation will reduce the time spent by the courts on questions of categorisation of objects of personal property rights, and instead allow them to focus on the substantive issues before them. It gives explicit effect to: [the] powerful case for reconsidering the dichotomy between [things] in possession and [things] in action and recognising a third category of intangible property ... in a way that would take account of recent technological developments. 

2.28 A statutory confirmation is likely to help protect new and emergent forms of property from intermediation imposed by the application of ill-fitting private law principles, such as the concept that such things are things in action. A statutory confirmation is also likely to help protect emergent forms of property from regulation which might mandate intermediation or reduce a person’s ability to self-custody their own asset; that is, to hold it directly rather than through an intermediary such as a wallet provider. 

2.29 A statutory confirmation will provide a strong signal to market participants that the law of England and Wales will continue to protect personal property rights, even in new and emergent forms of property. It will also re-emphasise the fundamental difference between third category things that can be “owned”, and other existing types of software, the rights to which are generally governed by a mixture of statute (for example, intellectual property rights) and contract (for example, licences granted by Microsoft), without clear principles of “ownership”. Crypto-tokens, for example, are so fundamentally different to other types of software or digital assets that this distinction alone is worth codifying in statute. Doing so will facilitate and encourage innovation based on the underlying principle that certain digital things can now be “owned”.