Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/49

 The hire of a ship is shorn from any association with bailment: Port Line Ltd v Ben Line Steamers Ltd [1958] 2 QB 146 (Diplock J).

150 There may be controversy about whether a hire of goods ever gives the hiree anything more than a contractual licence. The better position is that the hiree does not obtain any proprietary right by the hire. In relation to goods (but not land) English and Australian law does not recognise a property right of "exclusive control for a fixed period": McFarlane B, The Structure of Property Law (Hart Publishing, Oxford, 2008) 148–149; see also Swadling W, "The Proprietary Effect of a Hire of Goods" in Palmer N and McKendrick E, Interests in Goods (2nd ed, LLP, London, 1998) Ch 20. But this controversy cannot be used to restrict the meaning of a "supply" of goods because, on any view, a mere agreement to hire an ordinary chattel gives the hiree no more than a personal right against the hirer to the hire of the chattel.

151 Further, the statutory definition of supply is only an inclusive definition. As Logan J said in Australian Competition and Consumer Commission v Flight Centre (No 2) [2013] FCA 1313; (2013) 307 ALR 209, 241 [130] (on a point not raised on appeal with reference to the broad concept of supply: Flight Centre Limited v Australian Competition and Consumer Commission ([2015] FCAFC 104; (2015) 324 ALR 202, 219–220 [78]–[80]):

152 Similarly, Lockhart J said in Castlemaine Tooheys Ltd v Williams & Hodgson Transport Pty Ltd (1985) 7 FCR 509, 532 that "'Supply' is a word of wide import". Although the decision was reversed in the High Court, the High Court did not remark upon what Lockhart J had said about the breadth of this definition of supply. His Honour's remarks were not expressed in a way that excluded the provision of goods by way of a licence.

153 Secondly, if the Australian Consumer Law were to apply Valve's restricted construction of supply of goods the consequences would be very surprising indeed. For instance, unconscionable conduct provisions such as s 21, or unfair term provisions such as s 23,