Saturday, September 6, 2014

Cases: Robertson v The Balmain New Ferry Co Ltd

Continuing a look at court cases of note and/or interest.

This post grew in the telling, it originally was not intended to be this long. 

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Robertson v The Balmain New Ferry Co Ltd

On occasion a person may have a long and distinguished career, may be a person of strong principle and civic mindedness, yet be remembered rather unkindly by history for some fact or event. So it is with Archibald Nugent Robertson, a British born New South Wales barrister who is today primarily remembered as the dickhead who went to the Privy Council over a penny. His series of legal battles over that penny fare is required reading for law students in Oz but the facts always leave readers bemused.

Archibald Nugent Robinson:

Mr Robertson was born in London in either 1856 or 1857, the son of an expatriate Indian civil servant. Having come to Australia in about 1881, by 1897 he felt strong enough about civic matters to stand for election as an anti-Federation candidate to the Australasian Federal Convention. He came 49th out of 49 candidates. Weaker men may have retired from the fray, not so Mr Robertson, whose passion for pursuing a cause was not restricted by financial cost or public ridicule, as we shall see.

The facts:

The following statement of facts comes from a leading article on the case by Mark Lunney, Associate Professor of Law at the University of New England. Professor Lunney’s article – “False Imprisonment, Fare Dodging and Federation – Mr Roberston’s Evening Out” – can be read by clicking on:

(The paragraphing is mine).

The facts of the case are well known in outline but are more complicated than is usually recognised. It was the Monday of a long weekend (Bank Holiday) in June 1905. At 7.45 pm Archibald Nugent Robertson went to Circular Quay in Sydney, at the bottom end of Erskine Street, and entered the wharf of the Balmain New Ferry Company Ltd with Miss Mercia Murray, a well-known speech and elocution teacher in the area. The couple wanted to go on one of the company’s ferries but both boats had just left. When Miss Murray indicated that she wanted to catch another boat from another wharf nearby, she and Robertson proceeded to leave.  
Here the problems began.  
The difficulty was that entry and exit to the wharf was via turnstiles above which was a notice stating that entry and exit to the wharf was conditional upon the payment of one penny. This was because the company collected fares only at Circular Quay. (That is, at the Erskine Street Wharf. Otto] 
When they attempted to leave, the attendant at the entry turnstile told them they needed to leave by the other turnstile, and when they went to that exit, the attendant there asked for payment of one penny. Robertson pointed out that he had not, in fact, traveled on the ferry and wanted to leave the wharf to go about his lawful and proper business. At this point, there was a dispute in the evidence: Robertson and Miss Murray stated that, when Robertson tried to exit from the turnstiles, he was thrown back with great force by one of the attendants and that he was threatened with a fist; perhaps unsurprisingly, the attendants alleged that it was Robertson who had provoked matters by advancing on one of the attendants with a blackthorn stick, catching him under the lapel of his jacket. They alleged that Robertson was throughout this encounter calling out, ‘Don’t use force, don’t use force!’ As the case was decided by a civil jury, this evidential conflict was never explicitly resolved, but it seems very unlikely that the 49-year-old Robertson would have been as aggressive as was indicated. Indeed, at one point it seems that one of the attendants got the story wrong and had to be corrected by counsel.  
During the exchange between Robertson and the attendants, which lasted about five minutes, Robertson asked the crowd that had now gathered (estimated variously at between 20 and 200 onlookers, who were hostile to Robertson, asking him, ‘Why don’t you pay the fare?’) to call a constable, but no one did. At this point, Robertson paid for Miss Murray to leave, telling her that he would now have to stay and see it out. She fetched a constable, who told Robertson that his course of action should be to pay under protest and complain to the company, but this advice was refused, Robertson pointing out that he was a lawyer and that this was not what he was required to do.  
Finally he said that he would not be detained any longer and pushed through the gap between the turnstile and the bulkhead despite the efforts of one of the attendants to stop him (somewhat half-heartedly, according to the evidence; no doubt everyone was keen to end the stand-off). The couple then went to see Ms Murray’s parents after which Robertson, undeterred, returned on the Balmain New Ferry Company’s boat to Circular Quay, where the same attendants were still on duty. One told Robertson that he had not paid the penny previously; further exchanges followed but the attendant was unable to recall further what he said at the time.

Erskine Street Wharf, 1947, giving an indication of how it may have looked in 1904 when the standard practice was that people leaving the wharf to travel on the ferry paid a penny (there being no facilities for payment at the outer wharves) and people arriving from those wharves to likewise pay a penny.

The Claim:

Robertson brought an action against the company in the Supreme Court of New South Wales for assault and false imprisonment.

For the ferry company, the risk was great. The company, in its pleadings, estimated that 10,000 people a day used the ferry and the wharf; Robertson estimated the number at 50,000. A verdict for Robinson would mean that the company would be required to collect fares at all the outer wharves, there would be a need to install turnstiles and engage operators and attendants, greatly increasing operating costs. According to the company, the system would be unworkable if people were allowed to leave the wharf without paying, everyone had to pay.

Robertson alleged that he had been falsely imprisoned. This is an issue that English common law has always defended zealously, the right to freedom from arbitrary or wrongful detention of the person, hence the age old Writ of Habeas Corpus (“produce the body”), whereby an imprisoned person can be made to be brought before a judge or court.

The Defence:

Curiously, rather than plead justification or excuse, the ferry company chose to defend the claim on the grounds that the actions of the attendants went outside the course of their employment so that the company was not vicariously liable for their actions. Put simply, it was the fault of the attendants, they had gone too far.

After the jury had retired, counsel for the ferry company asked that the jury be directed that Robertson was bound by the notice. This was rejected, the Chief Justice saying that there was no evidence of knowledge of the notice.

The Verdict:

The jury found in favour of Robertson and he was awarded £100 in damages. Judge Darley commented that companies should know that they did not have the right to detain persons, even if for the purpose of perceived enforcement of rights.

The Bulletin commented at the time that he had done better than his election attempt in 1897.

The First Appeal:

Needless to say, the ferry company was not happy with the verdict.

It appealed to the Full Bench of the Supreme Court, one of the grounds of appeal being that the presiding judge had failed to direct the jury that Robertson was bound by the notice. This was argued as being relevant to the amount of damages awarded rather than as providing a complete exoneration to the actions of the ferry company.

The ferry company lost again, the decision of Darley CJ was upheld.

Archibald Nugent Robertson 2, Balmain New Ferry Company 0

The Second Appeal:

The ferry company then appealed to the High Court.

This time the company argued the right to detain as authorised by the sign. 

According to the company’s counsel:

The meaning of the notice was clear, viz, that any person who entered the wharf, whether through the turnstile or from a boat, would be prevented from leaving through the turnstile unless he paid a penny. That was a reasonable condition to impose under the circumstances, because it would be impossible for the appellants to carry on their business if it were necessary to inquire of each person whether he had actually travelled by boat or not. The respondent [Robertson], therefore, when he entered the wharf, knew, and accepted as an implied term of the contract of carriage, that he would have to submit to such detention if he failed to carry out his part of the contract.

Again, put simply, he was allowed to be detained by the company’s attendants because he had agreed to be detained.

Furthermore, according to counsel, there was no imprisonment because Robertson could have left the wharf by water, presumably either by swimming or by a later ferry.

At that time there was no decided law on whether a person could consent to imprisonment, hence the confused nature of the company’s various defences.

According to Professor Lunney:

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 High Court, which had seen the first Justices sworn in on 5 October 1903, determined the matter in 1906. The sign was irrelevant, as was the issue as to whether Robertson had consented to be imprisonment and whether he knew that by entering he was consenting to detention. What mattered was that Robertson had entered the wharf on the condition that he would leave by another exit. Should that not happen, his immediate freedom could be restrained.

It is clear from reading the judgments that commercial convenience and continued workability of commercial practices were important determining factors in the High Court decision.

Mr Robertson was not happy. The newly formed High Court had not only ignored defective pleadings (the documents filed in the court by each party setting out the facts, arguments, orders sought etc), it delivered its decision on different grounds and even entered a final verdict in favour of the ferry company when that company had simply requested a retrial.

On the one hand, the courts had traditionally respected the doctrine of sanctity of contract, even in respect of agreed surrender of liberty such as in picture theatres and on railways; on the other hand was the imperative of commercial necessity. The latter won in this instance.

For reasons unexplained, Robertson argued his own case before the High Court although he had been represented by counsel in the Supreme Court. The High Court justices comprised Griffith CJ, Barton and O’Connor JJ, all leading proponents of Federation. The latter two had stood against Robertson in the 1897 election.

When the Court entered a verdict for the ferry company instead of ordering a retrial, which is what the ferry company had asked, Robertson protested:

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.

Archibald Nugent Robertson 2, Balmain New Ferry Company 1

The Third Appeal:

Mr Robertson was not finished yet. He appealed to the Privy Council in London, the highest court of appeal in the Australian legal system until 1986. Surprisingly, despite republican sentiment, appeals from State courts to the Privy Council could bypass the High Court until 1986. Appeals from the High Court were gradually abolished from 1968.

Robertson found even less sympathy in the Privy Council than in the High Court. The High Court verdict was upheld and Robertson’s conduct on the wharf was described as “thoroughly unreasonable”. 

To add insult to injury, not only does the headnote for the case read “Toll – Evasion”, sadly, the printers of the law report used the incorrect name of Robinson instead of Robertson.

Archibald Nugent Robertson 2, Balmain New Ferry Company 2

The winner: the ferry company.

Public opinion:

Surprisingly, public opinion was largely on the side of Robertson and hostile to the High Court and Privy Council.

Professor Lunney has quoted selections from letters to the editors of Sydney newspapers:

“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?”

“ . . . one of the long cherished ideas of all British-born subjects is gone, and Magna Charta will have to be revised and re-affirmed.”

The Later Years:

After his defeat in the Privy Council, Robertson remained at the Bar, earning an income as a Crown Prosecutor on country circuits. He also served for 31 years as Visitor to the NSW system of hospitals for the insane. He wrote bad Kiplingesque verse and a Mills and Boon novel, Her Last Appearance (1914)

Today the case remains part of the study of tort law by students in Australia, not because it is good law but because it is out of step with current legal thinking, an aberration.


Archibald Nugent Robertson remains enshrined in Australian legal precedent in the public mind he remains the dickhead who went to the Privy Council over a one penny fare.

Perhaps that is unkind.

Professor Lunney writes:

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.

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1 comment:

  1. Thanks for the post, enjoyed the read. Wanted little more background on Robertson. Currently doing Contract law at UNSW.


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