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

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at 11 October 2009.

6 The description of the facts is distilled from a number of sources including the notes of the trial judge, Darley CJ (the manuscript is held by the State Records Office of New South Wales: State Records NSW (SRNSW): NRS 5818, Notebooks: Civil Causes [Chief Justice F M Darley], 1886–1908; [2/2854]; a printed version is present in the court file held by the Judicial Committee of the Privy Council) and contemporary newspaper accounts from The Sydney Morning Herald, The Daily Telegraph, The Australian Star and The Evening News (newspapers published in Sydney contemporaneously with the litigation).

7 Robertson was born in London in either 1856 or 1857, the son of an expatriate Indian civil servant. It seems he came to Sydney sometime during 1881. A retrospective report of the case in The Daily Mirror in the 1970s refers to him as ‘barrister, poet, novelist and the most brilliant conversationalist at the Athenaeum Club’: ‘Fight over Penny Ferry Fare Ended before UK Court’, The Daily Mirror (Sydney), 7 July 1975, 14. However, it should be noted that several other details in this report — such as that he was born in Sydney and attended Sydney University — are incorrect. The report also states that he wrote several novels, one of which was serialised in a Sydney paper, but I have found only one such book (see below n 79).

8 The configuration of Circular Quay is probably not the same today as it was in 1905 as present-day Erskine Street is some distance from the Quay.

9 Mercia Murray BA advertised her services in the Balmain Observer during 1905 and 1906, and there are reports in the paper of concerts given by her students. One such report commented that: ‘The high reputation the lady holds in this locality is sufficient guarantee of the excellence of the performance proposed’ (Balmain Observer (Balmain), 2 December 1905, 2). Professor Tony Blackshield says she was his fiancée: ABC Radio National, above n 4. It is certainly true that they later married on 17 October 1907 at St John’s Bishopthorpe, Glebe.

10 See SRNSW: NRS 5818, [2/2854], Page 51.

11 It seems that Erskine Street was a very busy place and a popular promenade for the working class. A retrospective news report in 1975 (‘Romantic Ferry Trip was Barrister’s Downfall’, The Sun (Sydney), 18 November 1975, 12) suggests that the turnstile operators gave the crowd the impression that a toff had enjoyed a ride on the Balmain ferry and was now refusing to pay his fare like any ordinary passenger and that this was why the crowd responded as they did. Certainly, the ferry company attempted to give the dispute a class base. A letter to the editor of the Balmain Observer, a newspaper owned by a director of the ferry company, contains statements such as that the writer is ‘only a common person’, ‘had he [Robertson] been a common person like myself’ and ‘then, as I said, he [Robertson] not being a common person’: The Scout, ‘Correspondence: The Robertson-Ferry Case Fiasco’, Balmain Observer (Balmain), 26 January 1907, 6.

12 National Archives of Australia (NAA): High Court of Australia, Office of the Registry, Sydney; A10071 Full Court case records (NSW), annual single number series, 1903–73; 1906/12, Balmain New Ferry Company Limited versus Robertson Archibald Nugent, 1906–10. Robertson’s petition for leave to appeal to the Privy Council can be found in Judicial Committee of the Privy Council, Printed Papers on Appeal (1909) vol 17, Judgment Nos 55–60.

13 In England and Wales, the main reforms were introduced by the Supreme Court of Judicature Act 1873, 36 & 37 Vict, c 66. These were implemented by the Supreme Court Act 1970 (NSW) and the Law Reform (Law and Equity) Act 1972 (NSW).

14 As is clear from Chief Justice Darley’s notebook all the evidence led by the defence went to this issue: SRNSW: NRS 5818, [2/2854].

15 E Bullen and S M Leake, Precedents of Pleadings in Personal Actions in the Superior Courts of Common Law (3rd ed, 1868) 702, citing Mitchell v Crassweller (1853) 13 CB 237; 138 ER 1189; A A Rath, Principles and Precedents of Pleading in the Supreme Court of New South Wales at Common Law (1961) refers readers to Bullen and Leake’s third edition for NSW practice in this period. I am grateful to Geoff Lindsay SC for this reference.

16 SRNSW: NRS 5818, [2/2854], Page 50 (evidence of Penson, one of the turnstile operators on the wharf).

17 Robertson certainly stated this in his petition to the Privy Council; Darley CJ was more equivocal, stating simply that Rolin (the ferry company’s counsel) addressed the jury saying that: ‘The question is what damages should the defendant pay’ (SRNSW: NRS 5818, [2/2854]). I have not found any authority on the point of whether the scope of authority question was one that could not be left to the jury. Presumably, if it could not, then Rolin’s approach simply reflected the limited question that could be determined by the jury.

18 ‘The State Courts – Banco Jury – (Before the Chief Justice and a Jury of Four) – Vindicating a Presumed Right – Robertson v The Balmain Ferry Company –Verdict for £100’, The Daily Telegraph (Sydney), 2 December 1905, 18.

19 Robertson v Balmain New Ferry Co Ltd (1906) 6 SR (NSW) 195, 197. Counsel for the ferry company is recorded as submitting that: ‘The second and third grounds are directed to the question of damages’.

20 Ibid 204 (Owen J), 205–8 (Cohen J), 213–214 (Pring J).

21 Bullen and Leake, above n 14, 792, citing Linford v Lake (1858) 3 Hurl & N 276; 157 ER 475. The case is cited by Cohen J in his judgment: Robertson v Balmain New Ferry Co Ltd (1906) 6 SR (NSW) 195, 206.

22 Cohen J dissented only on the ground that a new trial limited to damages should be ordered: Robertson v Balmain New Ferry Co Ltd (1906) 6 SR (NSW) 195, 208.

23 H R Curlewis, The Mirror of Justice (1906) 167–8.

24 ‘The State Courts’, above n 17.

25 H R Curlewis, ‘The Mirror of Justice’, The Daily Telegraph (Sydney), 8 May 1906, 5.

26 Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379, 383. Perhaps conscious of the implications of such an argument, Rolin immediately added: ‘There was no imprisonment because he could have left the wharf by water: Bird v Jones (1845) 7 QB 742’.

27 Sunbolf v Alford (1838) 3 M & W 248, 252; 150 ER 1135, 1138 (Lord Abinger CB).

28 Wyatt Pain, Clerk and Lindsell on The Law of Torts (4th ed, 1906) 204–5; William E Gordon and Walter H Griffith, Addison’s Treatise on the Law of Torts (8th ed, 1906) 167–87; Sir Frederick Pollock, The Law of Torts; A Treatise on the Principles of Obligations Arising from Civil Wrongs in the Common Law, to Which Is Added the Draft of a Code of Civil Wrongs Prepared for the Government of India (8th ed, 1908) 221–5; Sir John W Salmond, The Law of Torts: A Treatise on the English Law of Liability for Civil Injuries (1st ed, 1907) 344.

29 See, eg, Pollock, above n 27, 159.

30 Bullen and Leake, above n 14, 699 (general issue the correct plea for leave and licence in assault and battery), 740 (leave and licence to be specially pleaded in trespass to land and realty).

31 Ibid. But this was based on obiter in Christopherson v Bare (1848) 11 QBD 473; 116 ER 554 and, in this field, drawing analogies was fraught with uncertainty, eg, the distinction between conversion and trespass to chattels: in the former, even pleas that looked like justification could be raised under the general issue (eg, execution levied under a writ of fieri facias), whereas in trespass to goods they needed to be specially pleaded (thus, execution under fieri facias needed to be specially pleaded in trespass to chattels). See Bullen and Leake, above n 14, 699, 716.

32 Nugent Robertson, ‘To the Editor: The Ferry Case’, The Daily Telegraph (Sydney), 28 December 1906, 5.

33 (1845) 13 M & W 837; 153 ER 351. For a discussion of the case in its historical context, see Patrick Polden, ‘A Day at the Races: Wood v Leadbitter in Context’ (1993) 14 Journal of Legal History 28.

34 Pain, above n 27, 189; Gordon and Griffith, above n 27, 160; Pollock, above n 27, 218; Salmond, above n 27, 46. Pollock and Salmond also mention leave and licence in the context of trespass to land.

35 A Underhill and J Gerald Pease, A Summary of the Law of Torts; or, Wrongs Independent of Contract (9th ed 1911) 253 states that ‘[a]ctual restraint for however short a time constitutes false imprisonment’. Through various editions, Pollock noted — picking up on comments made in dissent by Lord Denman CJ in Bird v Jones (1845) 7 QB 742, 744; 115 ER 668, 669 — that restraint would not constitute imprisonment only when alternative means of escape could be used by a man of ordinary ability without peril to life or limb (eg, Sir Frederick Pollock, The Law of Torts (7th ed, 1904) 217; (12th ed, 1923) 220).

36 Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379, 386 (Griffith CJ), 389–91 (O’Connor J).

37 Ibid 390 (O’Connor J).

38 Perhaps an analogy could be drawn with the cases dealing with contractual licences held to be irrevocable for a certain period (see Hurst v Picture Theatres Ltd [1915] 1 KB 1), where consent was given for a particular purpose. The context was quite different, however; the question in these cases was whether the licence could be revoked. If it could, the licensee would become a trespasser. Wood v Leadbitter (1845) 13 M & W 837; 153 ER 351 was distinguished by creating some kind of limited proprietary right to be on the land for the particular purpose for which the licence to enter had been granted (in Hurst, the right to view a moving picture). It was clear that Robertson had no proprietary interest, even as broadly as that defined in Hurst, to which the ‘licence’ to restrain him related. Nor would a court of equity have specifically enforced the contract of carriage in Robertson, the other ground on which Hurst was decided.

39 Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379, 389 (O’Connor J).

40 On this point, see further Keng Feng Tan, ‘A Misconceived Issue in the Tort of False Imprisonment’ (1981) 44 Modern Law Review 166.

41 The ‘commercial convenience’ argument surfaces in O’Connor J’s dismissal of the suggestion that Robertson had the right to force his way out: ‘it was a necessary part of their system of collecting fares on entry and exit that the turnstile should be an effective barrier against entry and exit of any person except on the company’s conditions’ (Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379, 392).

42 Ibid.

43 Ibid 387 (Griffith CJ), 392 (O’Connor J).

44 Robertson raised this issue after the judgment was handed down, pointing out that he had not dealt with the issue of whether a verdict should be entered, as it was outside the notice of appeal. Griffith CJ held that the case had already been fully argued and that the order for leave could be extended now if necessary: see ‘Trouble Over a Penny Fare — Barrister and Ferry Company — Important High Court Decision — A Lively Breeze’, The Australian Star (Sydney), 18 December 1906, 1; ‘The Tally of the Turnstile — Barrister and Ferry Company — An Excited Litigant’, The Evening News (Sydney), 18 December 1906, 5; ‘Law Report: An Appeal Sustained — The Turnstile Case’, The Sydney Morning Herald (Sydney), 19 December 1906, 7. I discuss the context of this exchange in more detail below.

45 Pollock, above n 27, 218.

46 See generally Michael Ashley Stein, ‘Victorian Tort Liability for Workplace Injuries’ (2008) University of Illinois Law Review 933.

47 A classic example is Mogul Steamship Co Ltd v McGregor Gow & Co [1892] AC 25.

48 Dicey saw ‘collectivism’ replacing ‘individualism’ as the dominant political ideology from the 1870s: Albert Venn Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (2nd ed, 1914) 201. The same point was chosen by Patrick Atiyah as the the commencement of the fall of freedom of contract (Patrick Atiyah, The Rise and Fall of Freedom of Contract (1979) 571–626). Whilst Dicey’s classification has been criticised (see, eg, José Harris, Private Lives, Public Spirit: Britain 1870–1914 (1993) 11–13; compare W R Cornish and G de N Clark, Law and Society in England 1750–1950 (1989) 64), there is agreement that some changes did occur in the latter part of the nineteenth century. As Cornish and Clark put it (at 111), ‘[n]o longer was there so easy an acceptance of that rather blinkered calculation of human affairs which put its faith in functioning of free markets’. See also Robert Stevens, Law and Politics: The House of Lords as a Judicial Body 1800–1976 (1978) 159, arguing that the newer law lords in the Edwardian era ‘had gone some way to undermine the strong laissez-faire influence of Halsbury, Blackburn and Bramwell’.

49 Rande Kostal, Law and English Railway Capitalism (1994) 315–21. The same point has been made in the American context where it has been said that ‘[p]assengers received solicitous treatment from judges and legislators, a fact that seemingly contradicts the contention that the negligence standard was employed to hold down the operating costs of railroads’: James W Ely Jr, Railroads and American Law (2001) 221. See also Tony A Freyer, ‘Legal Innovation and Market Capitalism, 1790–1920’ in Michael Grossberg and Christopher Tomlins (eds), The Cambridge History of Law in America (2008) vol 2, 449, 464–5.

50 A later newspaper report described him as the most brilliant conversationalist at the Athenaeum Club: ‘Fight over Penny Fare Ended before UK Court’, The Daily Mirror (Sydney), 7 July 1975, 14.

51 On Robertson’s role as official visitor and his interaction with William James Chidley, see Mark Finnane, ‘Sexuality and Social Order: the State versus Chidley’ in Sydney Labour History Group (ed), What Rough Beast? The State and Social Order in Australian History (1982) 204.

52 As noted below, the reasoning was controversial even when it was applied to an employer-employee dispute in Herd v Weardale Steel, Coal & Coke Co Ltd [1915] AC 67.

53 Beginning with a description of the Full Court decision of the Supreme Court of New South Wales as ‘but a majority vote’: ‘The Balmain Ferry Case’, Balmain Observer (Balmain), 12 May 1906, 6.

54 Balmain Observer (Balmain) 13 October, 1906, 5.

55 ‘Observations’, Balmain Observer (Balmain), 22 December 1906, 1. The High Court judgment is reported later in the edition: ‘The Victory of the Turnstile — Balmain Ferry Company’s Rules Indorsed — By the High Court — How Robertson Took His Gruel’, Balmain Observer (Balmain), 22 December 1906, 3.

56 Robinson v Balmain New Ferry Co Ltd [1910] AC 295.

57 Ibid 300 (Lord Loreburn LC).

58 Ibid.

59 ‘The State Courts’, above n 17.

60 Robertson v Balmain New Ferry Co Ltd (1910) 79 LJR NS PC 84.

61 Herd v Weardale Steel, Coal & Coke Co Ltd [1915] AC 67.

62 ‘False Imprisonment’ (1914) 58 The Solicitors’ Journal and Weekly Reporter 702.

63 M S Amos, ‘A Note on Contractual Restraint of Liberty’ (1928) 44 Law Quarterly Review 464. See also Glanville Williams, ‘Two Cases on False Imprisonment’ in R H Code Holland and J F M Schwarzenberger (eds), Law, Justice and Equity: Essays in Tribute to GW Keeton (1967).

64 ‘Voice of the People: The Balmain Ferry’, The Evening News (Sydney), 3 January 1907, 6.

65 Layman, ‘To the Editor: The Ferry Case’, The Daily Telegraph (Sydney), 28 December 1906, 5.

66 HVY, ‘To the Editor: The Ferry Case’, The Daily Telegraph (Sydney), 1 January 1907, 3.

67 FJB, ‘To the Editor: The Ferry Case’, The Daily Telegraph (Sydney), 5 January 1907, 12.

68 Ibid.

69 XYZ, ‘The Ferry Case’, The Daily Telegraph (Sydney), 27 December 1906, 5

70 A Nugent Robertson, above n 31.

71 XYZ, ‘To the Editor: The Ferry Case’, The Daily Telegraph (Sydney), 29 December 1906, 9.

72 H R Curlewis, ‘The Mirror of Justice: Lay Criticism of Law’, The Daily Telegraph (Sydney), 8 January 1907, 8.

73 Ibid.

74 EM, ‘To the Editor: The Ferry Case’, The Daily Telegraph (Sydney), 11 January 1907, 10. See also Sampson Brass, ‘Voice of the People: The Balmain Ferry Case’, The Evening News (Sydney), 29 December 1906, 6, where it is argued that the precedents were ‘directly at variance’ with their Honours’ judgments.

75 ‘Voice of the People: The Ferry Turnstiles’, The Evening News (Sydney), 26 December 1906, 3.

76 Ibid.

77 Brass, above n 73.

78 Archibald Nugent Robinson, Federation and Afterwards: A Fragment of History AD 1898–1912, Which Briefly Sets Forth Some of the Causes of the Late Abortive Revolt of the State of New South Wales against the Commonwealth of Australia (1897).

79 ‘Again, HEYDON, of the Prudent Federation crowd, obtained 16 000 votes, while his colleague NUGENT ROBERTSON, who upheld the same banner, and who should have got the same votes if they were given to Heydon for his opinions only, comes ignominiously at the end with 2 000’: ‘The Result’, The Bulletin (Sydney), 13 March 1897, 6 (capitals in original).

80 SRNSW: NRS 5818, [2/2854], Page 42. Robertson indicated that he had been engaged in literary work, and although I have not conducted a detailed search, there is evidence of him contributing a number of stories to the Centennial Magazine in the late 1890s. He later wrote a book, Her Last Appearance, published by Mills and Boon in London in 1914. Certainly parts of his address to the High Court contain rhetorical flourishes redolent of the age. Thus, he was fighting ‘a public battle’ as the ‘public liberty’ was involved and was standing upon the wharf ‘clothed with all the liberties of a British subject’: ‘Law Report: Judgment Reserved: A Lawyer at Law’, The Sydney Morning Herald (Sydney), 12 October 1906, 7. These words do not appear in the Commonwealth Law Reports version of oral argument.

81 The Bulletin (Sydney), 7 December 1905, 18.

82 Barton and O’Connor JJ were both elected. In his pamphlet of 1897, Robertson referred to effigies of the ten delegates from NSW to the Convention being erected but then being totally destroyed in the later revolt described in the pamphlet. He certainly would have known Barton and O’Connor JJ socially, as they were all members of the Athenaeum Club, and there is correspondence to suggest he had some dealings with Barton J: State Library of NSW: MLMSS 38, Scott Family (Rose Scott) — Papers, 1777–1925; CY 1222 (MLMSS 38/21) Correspondence of Rose Scott, 8 June 1888 – 24 March 1925, Pages 45–7; letter to Rose Scott from Archibald Nugent Robertson, 17 February (year unknown).

83 ‘Law Report: An Appeal Sustained’, above n 43. A similar version is reported in The Australian Star (‘Trouble over a Penny Fare’, above n 43), but it adds that, when Robertson said he had been given no opportunity to argue the point, Griffith CJ told him that his memory deceived him. Robertson is also reported as saying that the law of pleading was as important as the law of manslaughter and murder and that ‘[y]our Honor [sic] cannot overrule the laws of this State’. Moreover, the tone of the exchange is noted: Robertson is said to have stated excitedly in a loud voice that he had as much right in the court as Griffith CJ. ‘The Tally of the Turnstile’, above n 43, refers to ‘an excited litigant’ and its report of the exchange says that Robertson’s last words were said ‘defiantly’ before sitting down and nervously fingering some documents. The Chief Justice ignored him and asked if there were any motions at the Bar.

84 Editorial, ‘The Public and the Law’, The Evening News (Sydney), 20 December 1906, 4.

85 [1907] AC 81.

86 Editorial, ‘When Judges Differ’, The Evening News (Sydney) 10 January 1907, 4. See also Editorial, ‘What Is Law?’, The Sydney Morning Herald (Sydney), 10 December 1906, 2, where it is noted that, of 125 appeals to the High Court from State courts, 73 had been reversed and 12 varied. To a quote from a cynical commentator — ‘the last court is always right’ — the editorial responded, ‘[p]erhaps’.

87 ‘Voice of the People: The Balmain Ferry’, above n 63.

88 FJB, above n 66.

89 ‘The Balmain Ferry Case — Criticism on the High Court’, The Sydney Morning Herald (Sydney), 17 January 1907, 5; ‘High Court’s Powers — The Balmain Ferry Case’, The Daily Telegraph (Sydney), 17 January 1907, 6. A less enthusiastic view of the meeting is provided by a correspondent to the ferry-sympathetic Balmain Observer, who noted that there was ‘less than a score present’ and who suggested that the whole dispute was organised by Robertson for publicity purposes: The Scout, above n 10.

90 ‘High Court’s Powers’, above n 88.

91 ‘The Balmain Ferry Case’, above n 88.

92 Judicial Committee of the Privy Council, above n 11.

93 An editorial in The Evening News (Editorial, ‘Under the Federal Yoke’, The Evening News (Sydney), 25 March 1907, 4), described the New South Wales’s experience as a member of the Commonwealth as ‘characterised as to the last degree disappointing and unsatisfactory’.

94 The Daily Telegraph (Sydney), 11 April 1907, 11. The quote is not entirely faithful to the original text of the speech: ‘To numbers who were once its sanguine believers, the words Australian Federation now imply a mistake — an experiment made too soon and whose results, financial, political, and above all, federal, are more than doubtful’ (J W Hackett, ‘Some Federal Tendencies in Australia’ (1907) 38 Journal of the Royal Colonial Institute 333, 334).

95 See the comments in (1907) 42 Law Journal 289, 301, 323, 340. Unsurprisingly, an editorial in The Daily Telegraph took a different view, noting that ‘[s]o far from the Privy Council operating unsatisfactorily, it is easy to recall an important occasion on which its judgment was regarded by the great majority of the Australian people as a most acceptable vindication of the palpable justice of a case’: Editorial, ‘A New Appeal Court’, The Daily Telegraph (Sydney), 30 April 1907, 4.

96 ‘The Victory of the Turnstile’, above n 54.

97 David Ibbetson, A Historical Introduction to the Law of Obligations (1999).

98 This may not be a novel insight, but it remains a point worth making in light of attempts to suggest that the law of tort, or at least of negligence, should exclude such external influences: see, eg, Allan Beever, Rediscovering the Law of Negligence (2007). For criticism of Beever’s proposed role for legal history, see Mark Lunney, ‘Counterfactuals and Corrective Justice: Legal History and Allan Beever’s Rediscovering the Law of Negligence’ (2009) 17 Torts Law Journal (forthcoming).

99 Bruce Kercher, An Unruly Child: A History of Law in Australia (1995) 171.

100 Ibid 169.

101 Harold Luntz, ‘Tort Law’ in Michael Coper, Tony Blackshield and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 677.

102 Author and compiler of Collier’s Cyclopedia of Social and Commercial Information and Treasury of Useful and Entertaining Knowledge (1882); Better than Gold (1885); A History of the World with All Its Great Sensations, Together with Its Might and Decisive Battles and the Rise and Fall of Its Nations from the Earliest Times to the Present Day (vol 1, 1887; vol 2, 1892); The Busy Man’s Handbook (1893).

103 ABC Radio National, above n 4.

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