Page:JT International SA v Commonwealth of Australia.pdf/78

Heydon J

Callinan J employed reasoning similar to that of Deane J when he summarised the judgment of Mason CJ, Deane and Gaudron JJ in Georgiadis v Australian and Overseas Telecommunications Corporation as saying :

"that an acquisition of property may occur if the acquirer receive[s], as a result of what has been done, a direct benefit. The expression, 'direct benefit' I would take to be capable of embracing advantages or benefits extending beyond and not necessarily of a proprietary kind in any conventional sense as understood by property lawyers."

Further, this Court has accepted that it does not matter that what a property owner has lost does not correspond precisely with what the Commonwealth or another person gains.

The authorities support the proposition that it is not necessary for the Commonwealth or some other person to acquire an interest in property for s 51(xxxi) to apply. It is only necessary to show that the Commonwealth or some other person has obtained some identifiable benefit or advantage relating to the ownership or use of property.

For some time legislation has affected the trading position of the proprietors. Over the years, their capacity to advertise has been cut. In the period before the time when the impugned legislation was enacted, only the packets in which cigarettes were sold, and the cigarettes themselves, could serve this purpose. Even during that period, there was legislative control over what could, and what had to, appear on those packets. But the proprietors did retain some property rights before the impugned legislation was enacted.

Each proprietor which owned registered trade marks had the exclusive right to use its trade marks, and to authorise other persons to use them, in relation to tobacco products (Trade Marks Act 1995 (Cth), s 20). Each trade mark was personal property (s 21(1)). Each trade mark owner could deal with its mark as the absolute owner (s 22). Equities in relation to each trade mark could be enforced against the registered owner except to the prejudice of a purchaser in