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

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This article has attempted to place the decision in Robinson v Balmain New Ferry Co Ltd in its historical context. That context is a complex amalgam with both an internal and an external dimension — a dimension that was understood and controlled by the lawyers and a dimension that went beyond the intricacies of pleading and doctrine. Whatever the merits of the competing legal arguments — and in many ways Robertson’s were stronger — the ferry company was not prepared to limit its case by reference to relatively narrow points of law. By the time the case reached the High Court, the commercial ramifications of a decision in Robertson’s favour were explicitly pointed out by the ferry company. The High Court and the Privy Council were not prepared to jeopardise the established system of fare collection; as the Balmain Observer put it, the ferry company’s rules had been endorsed by its victory.96 That the decision has proved to be of limited practical importance merely demonstrates its expediency: the commercial imperative of the ferry company could not generate a rule of general application. Viewing the case in its historical context may not change our views as to the result, but it does allow us to explore the interplay between the internal and external dimensions of legal reasoning. It demonstrates that these contexts were not mutually exclusive. As David Ibbetson has shown, the way a case is put by lawyers to the court is fundamental to how the case is decided,97 and this is evidenced by the varying ways the case was put to the courts by the ferry company’s lawyers. The ferry company was allowed to detain Robertson not just because he had entered into a contract but because the High Court was aware of the commercial consequences of a decision in his favour. This is not to deny the force of reasoning processes internal to law but merely suggests that in some cases, at least in the past, judges and courts did consider the consequences of their decisions, and in doing so, may have considered matters beyond legal doctrine.98

At a broader level, Robertson also shows the value of historical analysis of private law in Australia. The history of tort law in Australia after Federation remains to be written, and Robertson is a good example of the merits of such a project. It reveals an Australian court dealing with a case of first impression that forced it to make new law, a law which was in fact endorsed by the Privy Council. As Bruce Kercher notes, the observation that Australian courts merely copied the English common law ‘should be a commencing point of historical analysis, a hypothesis to explore, rather than a conclusion’.99 He notes that ‘[w]hen this history is written, we might well find that the High Court was less deferential to English law than we presently assume’.100 We may also find, as in Robertson, that there were peculiarly Australian contexts in which court decisions and legislation were made. It would be going far too far to think that the High Court justices in Robertson were out to get him, but Robertson does illustrate that decisions are not made in an historical vacuum and, at least to some degree, reflect contemporary historical and political currents. Viewed in this light, the reaction to Robertson represents a remnant of the defeated, but not extinguished, anti-Federation sentiment, a sentiment that at the time was not doomed to failure.

Whatever else this article has achieved, it is hoped that law students of the future may have cause to challenge Harold Luntz’s assessment of Robertson as ‘the arrogant barrister plaintiff’.101 Pompous he no doubt was, but as this article has demonstrated, he had good reason to think the law was on his side. Nor can one can doubt the sincerity of his belief in the virtue of his cause. We may not have liked him, but we should, perhaps, respect the actions of a man who, in a different era, might have been championed as a defender of civil liberties.

This article would not be complete without an observation on another well-known aspect of the case — why the authorised report of the Privy Council decision refers to him as Robinson rather than Robertson. There is certainly no error in the Privy Council record, so the mistake must have been made at the printers. An educated guess is that the problem arose from the name ‘Nugent’, an uncommon name which Archibald Nugent Robertson shared with a reasonably well-known contemporary American writer, Nugent Robinson.102 The printer may well have inadvertently made the connection with Nugent Robinson, and this is what appears in the printed report. The result was, as Professor Tony Blackshield’s ditty on the case records, not only that Robertson lost, but, to add insult to injury, ‘[t]hey couldn’t even spell your name’.103

1 Associate Professor of Law, School of Law, University of New England. My thanks to the staffs of the State Record Office Western Sydney Reading Room, the State Library of New South Wales, the National Library of Australia, the National Archives of Australia, the Law Society of England and Wales Library, the Cambridge University Library Rare Books Room, and the Judicial Committee of the Privy Council. Valuable comments were received from attendees of the 18th British Legal History Conference in Oxford in July 2007 and the 26th Annual Australian and New Zealand Law and History Society Conference at the University of New England in September 2007, where earlier versions of this paper were presented. Thanks are also due to the anonymous referees for their helpful comments.

2 [1910] AC 295. For a discussion of the error in Robertson’s name in the authorised report of the Privy Council decision, see below Part Eight.

3 See, eg, Francis Trindade, Peter Cane and Mark Lunney, The Law of Torts in Australia (4th ed, 2007) 60; Sir Henry Percy Winfield and J A Jolowicz, Winfield and Jolowicz on Tort (17th ed, 2006) [4-18].

4 R P Balkin and J L R Davis, Law of Torts (3rd ed, 2004) [3.31]; Simon Deakin, Angus Johnston and Basil Markesinis, Markesinis and Deakin’s Tort Law (5th ed, 2003) 427.

5 Which prompted Professor Tony Blackshield to write a ditty about the case: ABC Radio National, ‘The Balmain Ferry Case of 1905’, The Law Report, 23 January 1996

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