As a result of his experiences, Robertson brought an action against the company for assault and false imprisonment. On one level, it is perfectly obvious how the company wanted to defend the action. This is apparent from an affidavit filed by the company’s manager in support of the application for leave to appeal to the High Court of Australia. It noted that 10 000 people a day travelled on the company’s ferries, and in his later petition to the Privy Council Robertson himself said that 50 000 people a day used Sydney ferries.12 What the company wanted to argue was that this very large transport business simply could not operate if people were allowed to leave the wharf without paying; the only workable practice was to charge everyone.
The difficulty was how this argument might be framed in terms of a defence to an action for false imprisonment (the assault action fell or succeeded with the false imprisonment action). This difficulty was particularly acute in New South Wales, which did not introduce the Judicature Act reforms in full until 1972.13 Old-style pleading was the norm, so the plaintiff pleaded a standard count in his declaration. To this pleading, the ferry company responded with the general issue, that is, not guilty. This original choice of plea needs some analysis. If the ferry company had wanted to plead that it had good cause to detain Robertson, the general issue might not have been the correct plea; generally, pleas of confession and avoidance — what a modern lawyer might call excuse — needed to be specially pleaded, and the general issue would be an incorrect plea. The reason for the general issue plea, however, becomes clear when one looks at the way the ferry company argued the case at trial. Here the primary defence of the company was that the actions of the attendants went outside the course of their employment with the result that the company was not vicariously liable for their actions.14 The general issue was the appropriate plea to raise this kind of defence.15
The company was clearly confident in this line of argument — it took only two days to respond to the declaration — and at the end of Robertson’s case the ferry company’s counsel applied for a nonsuit. This was rejected by the trial judge, Darley CJ, who stated that he would not nonsuit in the face of the notice (meaning, most probably, that the attendants took the notice that entry and exit was conditional on payment of one penny as their instructions — as they later testified — so that there was at least some evidence that their conduct in restraining Robertson was in the course of their employment).16 The ferry company appeared to have no fallback argument. Although evidence was led from the attendants, it seems that the ferry company’s counsel admitted in summing up that the conduct could not be justified and that the question was one of damages.17 This was certainly the view of Darley CJ, who correctly noted that there was no justification on file, and that the question was solely one of damages. Nor was this result forced on him by the course of proceedings: he pointed out that it was important that companies knew that they could not behave in this way.18 Almost belatedly, after the jury had retired, counsel for the ferry company asked that the jury be directed that Robertson was bound by the notice. This was rejected, as the Chief Justice said that there was no evidence of knowledge of the notice. It is not clear why this was thought important, although the issue arose a number of times in the future progression of the case.
Almost immediately thereafter the ferry company sought to overturn the jury verdict of £100 in favour of Robertson by seeking a rule nisi, which was granted on three grounds. The first related to the decision on vicarious liability whilst the latter two concerned the failure of Darley CJ to direct the jury that Robertson was bound by the notice. Again, the pleadings are vague as to why the notice was thought important, but it is clear from the official report of counsels’ oral arguments before the Full Court of the Supreme Court of New South Wales that the ferry company saw it as relevant only to the question of damages.19 This was also the view of the Full Court.20 This approach suggests that no one saw the existence of the contract or any obligation imposed by it as providing any justification for the ferry company’s action. However, there was good authority, bearing the imprimatur of Bullen and Leake’s Precedents of Pleading, that conduct that did not amount to a justification could be led in evidence in mitigation of damages; conversely, if the conduct was in effect a justification, it needed to be specially pleaded.21 By a majority, the Full Court held that there should be no new trial on the question of damages, effectively saying that the condition was of no importance at all in determining liability and quantum.22
These decisions spawned little interest in the press. However, there is comment on these cases in The Mirror of Justice, a book published in 1906 and comprised of a collection of entries originally published as short commentaries in The Daily Telegraph. The author was H R Curlewis, barrister-at-law and lecturer at the law school at Sydney University. Although Curlewis thought the case was curious, he evidently did not think the result at all out of the ordinary. Whilst he pointed out the case left undecided whether Robertson was liable for breach of contract, he explained why damages of £100 could be justified:
But where there is a deliberate infringement of the rights of another, an attempt to enforce what may or may not be your rights by the law of the stronger hand, juries are encouraged to remind the defendant of his duties by awarding damages out of all proportion to the actual injury sustained.23
This is consistent with the report in The Daily Telegraph of comments made by Darley CJ when summing up to the jury:
These companies should know that they had no right to detain any person. It was not a case of cheating. No doubt the plaintiff suffered a good deal of annoyance by being placed in a position which caused people to think that he was trying to evade the payment of his fare.24
A comment in The Daily Telegraph after the Full Court’s decision was to the same effect: no one is allowed by the law of England to collect one’s debts by seizing the debtor and imprisoning him until he pays. It noted: ‘This law is so clear that the company did not even argue the point’.25
The key change in the ferry company’s tack came in oral argument before the High Court of Australia. Its written application for special leave to appeal to the High Court focused on errors in the trial judge’s directions to the jury. It argued that Robertson was bound by the notice, and that the ferry company had the right to demand payment of one penny. Nothing was said about detention. But before the High Court, the ferry company’s lead counsel, Rolin, put the argument somewhat differently:
The meaning of the notice was clear, viz, that any person who entered the wharf, whether through the turnstile or from a boat, would be prevented from leaving through the turnstile unless he paid a penny. That was a reasonable condition to impose under the circumstances, because it would be impossible for the appellants to carry on their business if it were necessary to inquire of each person whether he had actually travelled by boat or not. The respondent [Robertson], therefore, when he entered the wharf, knew, and accepted as an implied term of the contract of carriage, that he would have to submit to such detention if he failed to carry out his part of the contract.26 (emphasis added)