|False Imprisonment, Fare Dodging and Federation — Mr Robertson’s Evening Out
The decisions of the High Court and the Privy Council in Robertson v The Balmain New Ferry Company Ltd retain their place in modern tort texts discussing false imprisonment. This is surprising because the reasoning is frequently considered unclear at best or incorrect as worst. This article considers the case in two historical contexts to evaluate these views. The first context considers contemporary legal doctrine by exploring the significance of the pre-Judicature Act pleading rules applicable in New South Wales and the gap in the contemporary law that made the company’s method of enforcing fare collection problematic. Despite these impediments, the commercial pressures to uphold the system of fare collection proved sufficient to overcome these objections. The second, broader, historical context explores the reaction to the decision of the High Court as an aspect of lingering anti-federal sentiment in New South Wales. The analysis reveals a uniquely Australian context to the decision and reveals the potential of studies of the history of private law to contribute to the history of Australian law more generally.
The decision of the Privy Council in the case of Robinson v Balmain New Ferry Co Ltd2 remains a part of many tort courses and tort textbooks in common law countries.3 Yet the reason for including it tends to be to dismiss it as out of line with general principle, as non-representative rather than paradigmatic. It is explained away as an aberration,4 a task made easier by the eccentricity of its facts.5 Whilst for explanatory purposes this is a perfectly satisfactory way of dealing with the case as part of the modern law of tort, it leaves open a number of questions. First, if the case was considered contrary to general principle, why did the decisions of both the High Court of Australia and the Privy Council find comprehensively in favour of the ferry company? Analysis of contemporary legal doctrine suggests a lacuna in the law relating to the operation of the system of collecting fares adopted by the ferry company. The matter was of enormous importance to ferry companies: a result in favour of Robertson would have mandated significant change in ferry companies’ practices. The way that the legal lacuna was filled by both the High Court and the Privy Council avoided this commercially undesirable result — albeit with reasoning that gave short shrift to the pleading rules that operated in New South Wales — and ignored well-established limitations on the circumstances in which a person’s imprisonment could be justified.
The emphasis that Robertson placed on pleading rules in his argument may reveal a subtler context. In the High Court and in the petition for leave to appeal to the Privy Council, Robertson stressed the importance of respecting the pleading rules of New South Wales. The concern that State law might be ignored by the federal High Court needs to be viewed in the context of a High Court that was barely three years old and a federation that had been formed less than a decade before. The reaction to the decision of the High Court demonstrates that anti-Federation sentiment had not simply gone away after 1901. Given the status of the plaintiff, Archibald Nugent Robertson, the decision of the High Court provided a suitable focus for some of that sentiment, in terms of specific criticism of the High Court, as well as for more general expressions of dissatisfaction with Federation. In short, the case demonstrates the potential significance of Australian legal history, in particular the history of private law, to explanations of wider historical trends in Australia, an area that deserves far greater attention than it has thus far received.
The facts of the case are well known in outline but are more complicated than is usually recognised.6 It was the Monday of a long weekend (Bank Holiday) in June 1905. At 7.45 pm Archibald Nugent Robertson7 went to Circular Quay in Sydney, at the bottom end of Erskine Street,8 and entered the wharf of the Balmain New Ferry Company Ltd with Miss Mercia Murray, a well-known speech and elocution teacher in the area.9 The couple wanted to go on one of the company’s ferries but both boats had just left. When Miss Murray indicated that she wanted to catch another boat from another wharf nearby, she and Robertson proceeded to leave. Here the problems began. The difficulty was that entry and exit to the wharf was via turnstiles above which was a notice stating that entry and exit to the wharf was conditional upon the payment of one penny. This was because the company collected fares only at Circular Quay. When they attempted to leave, the attendant at the entry turnstile told them they needed to leave by the other turnstile, and when they went to that exit, the attendant there asked for payment of one penny. Robertson pointed out that he had not, in fact, travelled on the ferry and wanted to leave the wharf to go about his lawful and proper business. At this point, there was a dispute in the evidence: Robertson and Miss Murray stated that, when Robertson tried to exit from the turnstiles, he was thrown back with great force by one of the attendants and that he was threatened with a fist; perhaps unsurprisingly, the attendants alleged that it was Robertson who had provoked matters by advancing on one of the attendants with a blackthorn stick, catching him under the lapel of his jacket. They alleged that Robertson was throughout this encounter calling out, ‘Don’t use force, don’t use force!’. As the case was decided by a civil jury, this evidential conflict was never explicitly resolved, but it seems very unlikely that the 49-year-old Robertson would have been as aggressive as was indicated. Indeed, at one point it seems that one of the attendants got the story wrong and had to be corrected by counsel.10 During the exchange between Robertson and the attendants, which lasted about five minutes, Robertson asked the crowd that had now gathered (estimated variously at between 20 and 200 onlookers, who were hostile to Robertson, asking him, ‘Why don’t you pay the fare?’)11 to call a constable, but no one did. At this point, Robertson paid for Miss Murray to leave, telling her that he would now have to stay and see it out. She fetched a constable, who told Robertson that his course of action should be to pay under protest and complain to the company, but this advice was refused, Robertson pointing out he was a lawyer and that this was not what he needed to do. Finally, he said that he would not be detained any longer and pushed through the gap between the turnstile and the bulkhead despite the efforts of one of the attendants to stop him (somewhat half-heartedly, according to the evidence; no doubt everyone was keen to end the stand-off). The couple then went off to see Miss Murray’s parents, after which Robertson, undeterred, returned on the Balmain New Ferry Company’s boat to Circular Quay, where the same attendants were still on duty. One told Robertson that he had not paid the penny from previously; further exchanges followed but the attendant was unable to recall further what he had said at the time.