False Imprisonment, Fare Dodging and Federation Mr Robertson’s Evening Out

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Contracts and False Imprisonment

It is now necessary to look at the two ways in which it might be said that the contract between the parties might have affected liability for false imprisonment. First, it might have operated as a justification — lawful authority — to detain a person who was in breach of the ferry company’s conditions. Second, and importantly, in the context of false imprisonment, it might operate by implying that the plaintiff consented to any imprisonment. There are difficulties with each of these arguments. At the time of the case, there was longstanding authority that a person could not imprison another to enforce a breach of contract in the absence of some independent lawful authority (that is, a statute or judicial process).27 Moreover, it is absolutely clear from looking at the leading tort texts of the time — Clerk and Lindsell, Pollock, Salmond, Addison — that these justifications went to making lawful that which was otherwise unlawful.28 Thus, they were defences, which under pre-Judicature Act civil procedure needed to be specially pleaded. No such defence had been pleaded by the company. Superficially, the ‘consent’ argument was more appealing. In particular, this defence, which was alternatively described in some texts by its old pleading name of leave and licence,29 could in certain cases be put forward under the general issue. In modern terms, it went to the commission of the tort rather than to excuse. This was not, however, a general rule: it was clear that the appropriate plea for leave and licence in assault and battery was the general issue, but it was equally clear that it needed to be specially pleaded in trespass to land.30 The view was expressed in Bullen and Leake that it should be raised under the general issue in false imprisonment.31

Assuming that this was correct, there was a more fundamental problem in applying the defence. As Robertson pointed out in a letter to The Daily Telegraph after the High Court decision32 (more convincingly than was argued in the High Court), any argument of leave and licence had to contend with the leading case of Wood v Leadbitter,33 where it was made clear that any such licence could be revoked, and, if wrongfully revoked, the innocent party was left to its remedy in damages. Of course, Wood v Leadbitter was a case involving a licence to be on land. Indeed, from a review of the leading texts, it is clear that consent or volenti non fit injuria or leave and licence, however it was described, was considered primarily relevant in the context of assault and battery (at least among the intentional torts).34 There is no reference to consent and false imprisonment in any of the texts of the period. The uncertainty over the scope of leave and licence/consent in false imprisonment is reflected in the company’s pleadings on the effect of the notice. The company thought it was important but was not sure why this was so or how it related to an argument of commercial necessity. It is not until oral argument in the High Court that an embryonic version of the ferry company’s final case appears. Robertson had entered into a contract to leave the wharf by the ferry, and the ferry company asserted that, as Robertson had entered the wharf knowing of the condition upon which entry was granted, he was obliged to pay one penny and, crucially, that he could be restrained if he did not. But this was not the end of the story — for the first time the ferry company argued, presumably as a result of this contract of carriage, that Robertson had not actually been imprisoned, the ground on which many modern writers justify the result. Whatever one thinks of the merits of this latter argument, it certainly needed contemporary explanation, as the questions of how long one must be imprisoned for the tort to be committed and whether imprisonment occurred if the means of escape involved placing the plaintiff in peril remained relatively unexplored.35

  • Commercial Realities in the High Court

On analysis, the ferry company’s argument before the High Court was a strange mix of consent and lawful authority: consent, because the original basis for the restraint came from Robertson’s voluntary agreement; but perhaps also lawful authority, because it seemed clear that Robertson had revoked the agreement and so some other ground justifying the detention needed to be found. These nice distinctions, however, found no favour in the High Court. Robertson had entered the wharf on the condition that he would leave by another exit and could not complain if immediate freedom was not granted when that contract was repudiated.36 The notice was now considered irrelevant; it mattered not that Robertson did not know of the precise terms on which he entered the wharf. Rather, what was important was that he knew that there would be some charge or condition to exit the wharf.37

In hindsight, the decision of the High Court raised an important point about the relationship between consent and lawful authority in false imprisonment, a novel point that contemporary discussions simply did not consider. The defence that was recognised was a strange hybrid and very fact specific. It was either a form of lawful authority deriving from an initially implied contractual consent to a deprivation of liberty or a limited irrevocable contractual consent, the irrevocability flowing from the nature of the original agreement. Why this consent should be irrevocable on legal, as opposed to commercial, grounds was not clear;38 perhaps the consent was only irrevocable where there was the possibility of exit through the ferry, but this is certainly not explicit in the judgments. Moreover, the analogies drawn by O’Connor J as to the inconvenience to railway operators if Robertson’s case succeeded (for example, if passengers could then demand immediate release from contracted railway journeys at points where the train was not scheduled to stop) are entirely unconvincing.39 Robertson was not asking for the ferry company to delay its boats or change its routes, and it would have presented no practical difficulty to let Robertson go immediately;40 he managed it himself in the end by doing something he could have done immediately (squeezing between the turnstile and bulkhead).41

Whatever one thinks of the ultimate merits of these arguments, there are grounds for having some sympathy for Robertson. Throughout the trial and appeal, the ferry company’s arguments changed fundamentally whilst remaining vague. The contract was legally relevant and important, but we are not sure exactly why. Moreover, although both parties played by the rules of the pleading game in the lower courts, the High Court was simply not interested in pleading issues. O’Connor J said that the case had not been conducted on the basis of any pleading point;42 to the extent that this was true, it was because such a point had not been raised previously. Such arguments were not to bother the High Court: both Griffith CJ and O’Connor J thought any pleading deficiencies could be rectified by amendment,43 an unusual course to take by the time the case had reached the highest appellate court within Australia. And to cap it off, the High Court went further than the ferry company’s notice of appeal, which had only asked for a retrial, by directing a verdict for the ferry company.44 One reason for the reluctance of the Court to engage in any discussion of the pleading issues may have been that New South Wales civil procedure was already seen as archaic: Pollock, after commenting on the cases dealing with how to plead leave and licence, noted with evident satisfaction that this had long ceased to be of any importance in England.45

Whatever the doctrinal difficulties the case presented, however, it is clear that the commercial context also played an important role in the decision of the High Court. It might be thought that the decision is representative of an age where sanctity of contract was thought to prevail over principles of liberty and freedom. This may well be part of the story, but it must be remembered that the great debates on freedom of contract focused primarily on a number of discrete areas: disputes between employers and workmen (in the tort context, usually involving the trilogy of defences of contributory negligence, volenti non fit injuria and common employment),46 labour disputes and disputes between rival traders over the boundaries of conduct that interfered with economic interests.47 Even in these areas, the heyday of freedom of contract as a political ideal was, at the very least, in decline by the time of the case.48 Moreover, as Kostal has pointed out for an earlier era, actions by passengers against railway companies in negligence had a better track record of success than those brought by the companies’ employees. Whilst freedom-of-contract reasoning was frequently employed to prevent employees from suing railway companies, it was strikingly absent in actions by passengers, at least where they sued for personal injury.49 Robertson was not the typical plaintiff against whom freedom-of-contract arguments were routinely employed: he was a barrister, a literary figure,50 the chairman of the Board of Official Visitors to the Hospital of the Insane at Parramatta and a member of the boards of visitors to similar institutions at Callan Park, Gladesville and Cooks River.51 He was akin to the middle-class passengers who enjoyed great success against railway companies up to the 1870s, the period of Kostal’s study. Moreover, Robertson was suing for an infringement of his liberty interest, an interest that had been strenuously protected by the common law from its earliest times. It would have been quite a leap to allow the freedom-of-contract reasoning embodied in decisions on personal injury claims by workers against employers, or in decisions involving claims for economic loss in labour disputes and disputes between traders, to apply to Robertson’s action.52 Robertson’s contract with the ferry company was clearly important, but the commercial imperative that influenced the case was of a different, and narrower, order from the traditional political economy concerns of freedom of contract: the efficient operation of ferry transport on Sydney Harbour, a point made clear by the ferry company’s pleading in the High Court. The importance to the company of winning the action is evident from the actions of one of its directors, Walter Cummin McDougall, whose newspaper, the Balmain Observer, went to some lengths to downplay and discredit Robertson’s action.53 During the High Court hearing, the paper reported that ‘[t]he judge spoke greatly in favour of the Ferry Co., and smiled at any idea of an assault on Robertson having taken place’.54 Robertson felt sufficiently aggrieved to bring this reference formally before the High Court by deposition, but nothing appears to have transpired from it. However, it does explain the Balmain Observer’s sardonic comment on the High Court decision:

It was neither the judge, nor the staff of the ‘Observer,’ nor Mr Nugent Robertson that smiled on Tuesday when the High Court delivered its judgment in the Robertson v [Balmain] New Ferry [Co Ltd] case. No, but the full staff of the Ferry Co. and a lot of shareholders let out a high pressure expression of pleasure followed by a smile that would almost be considered contempt of court by Mr. Robertson.55

In the end, these forces were irresistible: Robertson lost in both the High Court and the Privy Council, the opinion of the Judicial Committee of the Privy Council being little more than acquiescence in the judgment of the High Court.56 It is short, spends no time at all on any constitutional or pleading question and, for good measure, condemns Robertson’s actions as unreasonable.57 The desire to dismiss the case as without merit is evident from the statement by the Privy Council that the trial judge should have granted the nonsuit asked for by the ferry company at trial.58 However, as the nonsuit related to whether the attendants had acted in the course of their employment, it clearly would have been wrong to have done so. To have expected Darley CJ to nonsuit on matters not raised in argument was unrealistic. Perhaps the best example of Robertson’s fall from grace is the headnote in the Law Journal Reports. Whereas Darley CJ had instructed the jury that ‘it was not a case of cheating’,59 the headnote reads ‘Toll — Evasion’.60

The result was that Robertson eventually lost, but he had the last, no doubt bitter, laugh: when the House of Lords applied his case to a miner stuck down a mine as a result of his own breach of contract,61 even The Solicitors’ Journal thought the Robertson principle was somewhat dangerous.62 Writing in the Law Quarterly Review in 1928, Amos explained compellingly why the general ground for the Privy Council decision was untenable.63

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