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

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Outside the Courtroom: Press Reaction to the High Court Decision

Robertson’s case, particularly in the High Court, was a case that had a history outside the courtroom, and a number of points may be made about the press reaction to the High Court decision that reveal a subtler historical context. First, there was no general press reaction. The Sydney Morning Herald ended its interest in the affair after reporting the result of the appeal. Conversely, The Daily Telegraph (and its sister paper, The Evening News) took a considerable interest in the result both in editorials and in letters to the editor and commentary pieces that were published. Broadly, the letters to the editor fell into two categories. The first category was blatantly hostile to the result reached by the High Court. A sample of letters will suffice to illustrate the point. Writing on 3 January 1907 in The Evening News, ‘JFM’ stated:

The more the judgment of the High Court in this case is considered, the more unsatisfactory it is found to be. Surely the detested trusts of America never exercised a more tyrannical power than is claimed by the ferry company, and allowed by the High Court, namely, the power to collect its debts by force and imprisonment.64

Other correspondents challenged the ferry company’s right to detain. ‘Layman’ wrote:

What right had the ferry company to stop him [from leaving] and demand yet another penny for a return trip that he neither contracted for, did not want, and never had. Suppose I pay the Railway Commissioners my fare to Melbourne, and change my mind on the platform. What right would they have to stop me on leaving, and demand a return fare from Melbourne?65

A common theme was the sense of shock that the High Court decision had engendered. One contributor thought, if the decision was right, ‘then one of the long cherished ideas of all British-born subjects is gone, and Magna Charta will have to be revised and re-affirmed’.66 Although it is something of an overstatement, there is much to support the statement of one correspondent that ‘[t]he correspondence in your columns shows unusual agreement in public opinion as to the absurdity of the High Court judgment’.67 Interestingly, the same correspondent also noted that this opinion was not confined to laymen ‘for every lawyer I have spoken to … has expressed amazement at the decision’.68

In fact, The Daily Telegraph published a number of lawyers’ views on the effect of the case, and the views expressed were more equivocal than the correspondent suggested. In a succinct commentary on 27 December 1906, ‘XYZ’ summarised the effect of the decision in four points, the most important of which suggested that, although Robertson had been free to revoke any consent he had given to a deprivation of liberty through this contract, this did not require the company to take active steps to release him.69 Clearly troubled by the fact that Robertson had actually escaped by pushing past a turnstile, which apparently did the turnstile no harm and which did not engage the company in taking active steps to release him, XYZ thought the fact that, in escaping, Robertson might have damaged the turnstile or its counting mechanism provided sufficient grounds for the company to use force to prevent the imminent damage or interference but not to enforce any alleged right to imprison. In an unusual occurrence, Robertson himself wrote to The Daily Telegraph in response to the letter, pointing out a number of alleged flaws in XYZ’s argument.70 XYZ responded further, noting that his article was addressed to what the High Court had actually decided and not what XYZ thought the law should be: ‘While reserving to myself the right to approve of a High Court decision if I choose, I did not intend that approval should appear from the article written by me on the Balmain Ferry case’.71

The public reaction to the case prompted a more global comment on lay criticism of the law. Curlewis, in a ‘Mirror of Justice’ comment, clearly thought that some of the lay criticism of the Balmain Ferry case had little substance. At the end of his piece, he suggested that when criticising a decision, ‘[b]e absolutely sure that you are criticising the decision which was given, and not a decision which you merely imagine was given’.72 But the more general thrust of the piece was that there were spheres where lay criticism missed the point. It could be said that a decision produces great inconvenience, but could any lay criticism along those lines deal with the lawyer’s response that the decision followed logically from (say) the rule in Shelley’s Case and had to be decided as it was in spite of its consequences? ‘Would it not follow’, Curlewis surmises, ‘that you cannot safely deny that a decision follows from Shelley’s [C]ase if you have no idea what Shelley’s [C]ase actually was’?73 Even on Curlewis’s terms, however, the decision did not escape criticism; one correspondent wanted to know whether it would be too much to ask Curlewis to quote any case — British or American — from which the decision of the High Court in the ferry case followed logically.74

Whilst XYZ and Curlewis presented plausible — from a lawyer’s perspective — explanations of the case, other attempts to justify the case in legal terms were less successful. After noting the words of Artemus Ward in the book Artemus Ward: His Book — Being the Confessions and Experiences of a Showman, who had said while you could not go into his show without paying you could pay without going in, ‘Bumble’ argued that Robertson’s situation was analogous. The payment was for entering upon the wharf not for the ferry trip. It was suggested that if Mr Robertson had read Artemus Ward more and Coke and Lyttleton less, ‘trouble would have been saved, and money too’.75 This light-hearted legal justification was quickly dismissed; the editor of The Evening News added a comment to the letter that the correspondent had rather missed the point,76 and a later writer thought it not in good taste to ‘look upon High Court proceedings as a sort of Gilbert & Sullivan harlequinade of the people’s liberties and proper matter for light and frivolous banter’.77

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