New South Wales Consolidated Acts

STATE RECORDS ACT 1998 - SECT 38

38 Presumption that State records are owned by the State

(1) In any proceedings for the recovery of possession of a State record by or on behalf of the State or an agency of the State it is to be presumed that the record is owned by the State or agency of the State. The presumption is rebuttable by evidence to the contrary.

(2) The presumption does not apply to a record created before the commencement of this section unless it is established that the record was in the ownership of the State or an agency of the State on some occasion after that commencement.

(3) The presumption is rebutted if it is established that the person who has possession of the record (
"the holder" ) obtained possession of the record as a result of the distribution of the estate of a deceased person, or as a purchaser in good faith and for value without notice of any defect in title of the person who transferred the record to the holder or that the person who transferred the record to the holder had no title to it. This subsection does not limit the ways in which the presumption can be rebutted.

Note--: The effect of this presumption is not to make the State the owner of a record when there is evidence that the State is not the owner. The presumption operates to put the onus of establishing ownership on the person who is disputing the State's claim to the record, ie the State is regarded as the owner until someone establishes to the contrary. Rebuttal of the presumption does not of itself mean that the State is not the owner of the record. The State can still establish ownership of the record in the same way as any person would establish ownership of property. The fact that a person has obtained possession of the record as a purchaser in good faith and for value without notice that the State was the owner of the record, or obtained possession under a will or intestacy, does not of itself mean that the person is the owner of the record. Questions of ownership and entitlement to possession of a State record are to be determined as for any other item of personal property.