Field v Sullivan: 1923

(Supreme Court of Victoria) The claimant claimed return of goods seized by the police believing them to be stolen. The theft was not established and the claimant as the party in possession at the time of the seizure was held entitled to their return. ‘If A is in possession of goods, he is prima facie in lawful possession of them and prima facie has the right to that possession; in the absence of any evidence to the contrary, in any proceedings that possession is proof of ownership; but that possession may be divested out of him lawfully or unlawfully. If unlawfully, his right of possession remains. As against the person who unlawfully deprived him of possession (B) or those claiming through him, A’s possession (even if wrongful) up to the time of seizure, is sufficient evidence to establish his right to possession: nor can those persons set up that the goods were A’s possession, but were really the property of X, though, of course, if B took possession on behalf of and with the authority of X, who is shown to be the true owner, that might be set up to show that B’s seizure was not unlawful. If the divesting is lawful, A’s right of possession may be destroyed entirely or may be merely suspended or temporarily divested … So where the law permits them to be seized or detained for a certain time or for a certain purpose or until a certain event, As possession is suspended or temporarily divested and the right of possession is vested in, or A’s right to possession is displaced by, the right of possession in the person authorised to seize them or detain them for the period during which he is authorised. In other words, A’s property and right to possession are made subject to the right of the police or other person seizing under the authority of the law to detain them during the period during which the detention is authorised; when that time expires, and no lawful order has been made for the disposition, his right to possession, if nothing more appears, again operates. I say `if nothing more appears’, for if it may appear by evidence that A never had a right of possession, as in [Buckley], and that therefore there was no suspended right of possession to revive or again operate …’


Macfarlan J, Cullen J


[1923] VLR 70




CitedBuckley v Gross 1863
The court had to decide the ownership of of tallow which had been kept at warehouses. In a fire; it melted and flowed down the sewers into the river where part of it was collected by a man with no right to it; and he sold it to the claimant. The . .
CitedThe Queen v D’Eyncourt 1888
andpound;108 was seized by police as money obtained by false pretences, but the charges were confined to andpound;8 alone. The question arose whether the magistrate had jurisdiction under the 1839 Act to direct the delivery of goods which were . .

Cited by:

CitedCostello v Chief Constable of Derbyshire Constabulary CA 22-Mar-2001
The police seized a car from Mr Costello, believing that it was stolen. The seizure was lawful at the time, by virtue of section 19 of PACE. The police never brought any criminal proceedings against Mr Costello, but they refused to return the car to . .
Lists of cited by and citing cases may be incomplete.

Torts – Other

Updated: 03 July 2022; Ref: scu.194103