Robertson, the High Court and Federation
It is clear, then, that there was some degree of public criticism of the case. But it was not just the result that caused disquiet. It was the fact that it was the High Court that had given this decision. The suggestion that the case had federal connotations beyond its own facts should not be overstated nor should this context be dismissed. Archibald Nugent Robertson had been an opponent of Federation in the late 1890s; his opposition culminated in a pamphlet he wrote in 1897.78 It is an interesting piece, written from the point of view of a fictitious professor and set in 1915. It details the economic decline of, and ultimate revolt by, the State of New South Wales after Federation. The revolt is unsuccessful, crushed by Commonwealth forces that are dominated by Victoria. In fact, Robertson stood as an anti-Federation candidate for New South Wales in the 1897 Convention elections, running, if The Bulletin is to be believed, last out of 49 candidates.79 This seems to have dampened his enthusiasm: there is no record of him playing an active role in the later anti-Federation movement, and he stated in his evidence at the trial that he was chosen as one of five people to pick the best ode to Federation.80 However, his past deeds remained with him. When the verdict in his favour was given in the New South Wales courts, The Bulletin commented that he did better in court than he did when standing on the anti-Federation ticket.81
When his case reached the High Court, for reasons unexplained, Robertson had to argue the case himself (he had counsel before the Supreme Court) before a panel of justices that comprised Griffith CJ, Barton and O’Connor JJ, three leading proponents of Federation, the latter two of whom he had stood against in the 1897 Convention elections.82 In this context, an exchange between Robertson and Griffith CJ following the delivery of the judgments in the High Court, which, in other circumstances, might have simply been explained as the complaints of a disappointed party, takes on a different meaning. Robertson queried the order that had just been given by the Court:
Mr Robertson: I am speaking on the question of jurisdiction. I submit that the Court has gone beyond the order of leave. The order of leave is only on the question of a new trial, and that is all I came to meet. The notice of appeal as served upon us was that a new trial should have been granted on certain grounds. I did not come to meet the question that has been decided. I did not come to meet the question of whether the verdict should be entered or not. If your Honors [sic] think you should enlarge the order of leave, then I submit the case should be reargued.
The Chief Justice: Leave can be extended now if necessary.
Mr Robertson: I submit that I should be allowed to argue upon the question of the pleadings.
The Chief Justice: The question has already been fully argued, Mr Robertson.
Mr Robertson: The question of the verdict has not been argued at all.
The Chief Justice: This was all argued, Mr Robertson.
Mr Robertson: Your Honor [sic] has for the first time raised the question of leave and license [sic] — a question never raised in any Court before. The Supreme Court rule was not put before you at all. I trust your Honor is not going to overrule the laws of this State. The law of pleading is of as much importance as the law of manslaughter.
The Chief Justice: Mr Robertson, the Court is treating you with great indulgence in hearing you so long.
Mr Robertson: I don’t think so, your Honor [sic]. I have as much right in this court as your Honor.
The Chief Justice: If you don’t behave yourself, Mr Robertson, you will find that you have not as much right here as we have.
Mr Robertson: Your Honor [sic] will take such steps as you please. I am not to be silenced when I am putting forward a legitimate objection. Am I to understand that your Honors [sic] extend the order of leave after argument and judgment, and after all is over?
Mr Ferguson [junior counsel for the ferry company] then rose and asked the Court upon the subject of costs, and the incident ended.83
The notion that the High Court was paying insufficient respect to State courts was taken up in an editorial in The Evening News shortly after the judgment. The editorial noted that the lay mind (which found the decision puzzling) had been supported by decisions of State judges and that, although the High Court existed to correct errors, this did not prevent the possibility of the High Court being wrong. The High Court sometimes gave decisions ‘with a rather curt intimation’ of what lower courts should have done or suggested that the ‘rudiments or other principles of the law were not within the mental grasp of a Lower Court … [and this] was pointed out in something like the style of the headmaster of a school correcting a false quantity of Latin’.84 Whilst refraining from individual criticism of the judges (indeed, the editorial was very respectful), the prospect of an appeal was considered desirable. In January 1907, after the Privy Council overturned the High Court’s decision in the constitutional law case of Webb v Outtrim,85 another editorial raised the same issue:
Seeing that the judgments of the High Court have since its existence, and more particularly as they concerned the decisions of the Supreme Court of New South Wales, been tending to show that the law of the latter was bad, this cannot fail to raise a very considerable doubt as to whether, after all, the High Court has not been wrong in other judgments than that in the case Webb v Outtrim, and this must have a prejudicial effect on the popular confidence in the ultimate judgment under the law. … But the ignorant public … will also be apt to think that if, in the opinion of the Privy Council, the High Court can make important mistakes in regard to constitutional law, its capability to make important mistakes in regard to the ordinary law of the land is demonstrable.86
A number of other correspondents also hoped that the decision would be put right by the Privy Council in terms that clearly suggested a slap in the face for the High Court. In a letter to the editor of The Evening News, JFM penned the following verse:
Do I sleep? Do I dream?
Do I wander and doubt?
Are things what they seem?
Or is visions about?
Is our High Court a failure?
Or is British Justice played out?87
For JFM, the Privy Council was the people’s hope and the key was to get Robertson’s case before it, a view shared by another correspondent who offered one sovereign towards the support of any appeal.88
The anti-federal nature of the clamour for an appeal was demonstrated when a public meeting was held on 16 January 1907 in response to an advertisement in the press (and to a circular distributed in the area) to consider what steps should be taken in the public interest to promote an appeal in the case.89 In fact, the meeting was adjourned as only 25 people turned up, but the rhetoric of the few speeches given encapsulated the sentiment that was present. The proposed chairman, federal Senator J C Nield, said that, as a member of the Senate that had passed the Judiciary Act 1903 (Cth), he had had no idea — nor had any other member of either chamber had any idea — that they were, in passing the section in question (s 74), conferring such extraordinary jurisdiction upon the High Court. It had come as a shock to him that verdicts could apparently be set aside and decisions overruled without pleadings or without argument.90 Another speaker, Dr McDonald Kelly, observed that there was a certain glamour about the High Court, but any apologist for the High Court must attack most of the decisions of the New South Wales courts and other State courts and perhaps even the Privy Council. According to The Sydney Morning Herald report, Kelly said:
The public, he contended, had not the slightest confidence in the High Court because they could not make themselves believe that all the other Judges were wrong and Sir Samuel Griffith right.91
I have found no record of a further meeting being held, but Robertson did petition for leave to appeal to the Privy Council in May 1907. Whilst being something of a rant, it expressly raised the issue of the High Court’s competence under the Judiciary Act 1903 (Cth) to deal with questions of jury verdicts and pleadings of State courts.92 The federal context of the case should not be pushed too far, but it is easy to forget from a distance the precarious authority of the High Court within the Australian federation, a federal institution that was only three years old when it gave its decision in Robertson. Federation was not universally popular: in New South Wales, remnants of anti-federal sentiment can be found in editorials of newspapers in early 1907.93 More generally, Dr J W Hackett, a member of the Western Australian Legislative Council, in a speech to the Royal Colonial Institute in London in April 1907 commented that Federation had not secured the preponderance of sympathy and popular approval that was once expected and that many sanguine believers ‘now considered that Federation was a mistake, that the experiment was premature, and that the results, whether financial, political or federal, were more than doubtful’.94 Despite this, however, he thought that Federation was here to stay, a view that ultimately shows the relative naivety of those who clamoured for an appeal in the hope that the Judicial Committee of the Privy Council was the body to administer a backhanded slap to Federation by dressing down the High Court. Even as special leave was being granted in May 1907, the Privy Council was itself under attack as Australia’s ultimate appellate court: the Colonial Conference of the previous month contained a thinly veiled criticism of the Privy Council from Alfred Deakin, albeit in the context of constitutional cases.95 By the time the Robertson appeal was heard two years later, it would not have been a propitious time for the Privy Council to vindicate Robertson’s view that the High Court had gone beyond its constitutional limits, especially for a litigant who had some history of opposing the federal idea as a whole.