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Sir Roderick says . . .

Every Issue

Cite as: October 2009 83(10) LIJ, p89

"Finders keepers" is not a legal precept

Everyone has their own favourite legal maxim but the trouble is many of these are just plain wrong. Sir Roderick George Smythe-Walters sorts fact from fiction.

It is, of course, entirely coincidental that this year's Australian Bar Association conference occurred in England during the Ashes cricket series.

I recall the last time I graced a cricket field - playing for Oxford in the annual battle against Cambridge - my five wicket haul resulted in a win to the Dark Blues, and a Full Blue for yours truly. As you might know, I had earlier received a Blue for rowing while at the university.

My reminiscences about my sporting career will have to wait for another time, as my editors have no appreciation for the athletic pursuits. Let me promptly turn to this edition's question which, as it happens, is related to cricket.

A few years ago I saw young Adam Gilchrist become the first player to hit 100 sixes in test cricket. The record-breaking slog carried the ball over the stands at the Hobart field. It then disappeared into the hands of a fan who chased the ball [as an aside, I note that such behaviour in the Members Pavilion would, quite rightly, result in one's immediate removal and possible expulsion from the Club].

The mystery fan became the focus of a nationwide search. Speaking to one of the broadsheets, a spokesperson for Cricket Australia said:

"There's no finder's keepers rule in Australian cricket, nor is there under Australian law.

"We paid for the ball, we own the ball and we want to present the ball at the Australia-New Zealand clash."

In the formerly colonised US, the ownership of record-breaking baseballs has been the subject of significant interest, since they can be worth many hundreds of thousands of dollars.

As you would expect in that legal backblocks, academic commentators even held a formidably titled symposium - "From the baseball field to the courthouse: contemporary issues facing baseball practitioners".

Before young Gilchrist's swipe, however, the question of who owns the ball had not arisen in Australia.

The answer is that a cricket ball is no different to any piece of personal property.

During a game of cricket, it has an owner - that is the organisation that stages the game.

The right to ownership of the ball will only be lost if that right is given away, sold or is abandoned. Even where a cricket ball is hit into the stand, it is well understood that the organiser intends that the game will continue using the same ball. There is no intention that the game will continue without it, or that the organiser does not wish the ball to be returned even if it cannot be retrieved promptly.

As there is no abandonment, a fan who finds or catches the ball does not take ownership of it.

In this sense a cricket ball that has been hit over the fence is analogous to a chisel dropped by a clumsy worker on a scaffold. It is a tool of the trade, one that is intended to be returned to use by its owner.

That is the difference between cricket and its unrefined cousin baseball.

In baseball, it is understood that the organiser of the game intends that "you can keep that ball", meaning the owner abandons its rights over the ball to a fan that takes possession.

Famously, this occurred when star slugger Barry Bonds hit his record breaking 73rd home run into the bleachers.

A fan caught the ball in his glove, but it bobbled out and was found by another fan. Each sued the other, with the first fan claiming his catch was sufficient to claim a right to possession against the possession claimed by the second fan.

In the ensuing legal fight a baseball umpire was even asked to give evidence as to whether the first fan did in fact "catch" the ball. Ultimately, the judge decided, with the wisdom of Solomon which vested in him on his ascension to the Bench, that the ball should be sold and that each fan should keep half of the proceeds.

In cricket, however, catch or no catch, there is no finder's keepers rule for the record breaking ball.


Got a question for Sir Roderick?

Email it to sirroderick@liv.asn.au, or fax 9607 9451 or mail C/- LIJ, 470 Bourke Street, Melbourne 3000.

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