Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/48

 (1937) 56 CLR 605, 630-631. In Hohfeldian terms, a contractual licence is not a mere privilege. It confers claim rights against the licensor not to act contrary to the terms of the licence. But the licence itself does not confer any property right. As Vaughan CJ said in Thomas v Sorrell (1673) Vaugh 330, 351; (1673) 124 ER 1098, 1109, "[a] dispensation or licence properly passeth no interest, nor alters or transfers property in any thing, but only makes an action lawful, which without it had been unlawful".

145 I reject Valve's submission that goods supplied by licence are not a "supply of goods" for two reasons corresponding to inconsistency with the text of the Australian Consumer Law and inconsistency with its purpose.

146 First, this submission is inconsistent with the definition of "supply". The inclusive definition of supply is contained in s 2 of the Australian Consumer Law. That definition provides that when "supply" is used as a verb it includes:

147 Section 11(b) provides that "a reference to the supply or acquisition of goods or services includes a reference to agreeing to supply or acquire goods or services" (emphasis added).

148 A contractual licence to use goods is, essentially, a hire without a bailment. In TRM Copy Centres (UK) Ltd v Lanwall Services Ltd [2009] UKHL 35; [2009] WLR 1375, 1380 [9] Lord Hope (with whom Lords Hoffmann, Rodger, Walker, and Baroness Hale agreed) said that a "hire", without the accompanying baggage of "bailment" of the thing was "a contract by which the temporary use of a subject, or the work or service of a person, is given for an ascertained hire". He quoted a definition from Bell GJ, Commentaries on the Law of Scotland (McLaren's ed, (7th ed, T & T Clark, 1870)), Vol I, 481:

149 The reference to a locatio conductio or, more accurately here, locatio conduction rei is to the Roman law concept of hire where the use and occupation of the thing gave no possessory right but only "detention" of the thing as a personal right against the hirer. Apart from examples of agreement to hire, another example in English law of a hire that has no possessory effect is the hire of a ship (which is included in the inclusive list of goods in s 2).