Federation Follies: Public Reaction to Robertson v Balmain New Ferry Company Ltd

Abstract

The well-known Australian case of Balmain New Ferry Company Ltd v Robertson, decided by the High Court of Australia in 1906, and affirmed by the Privy Council in 1909, has frequently been seen as something of an anomaly. Although touching on the doctrinal reasons for the decision, this paper considers the press reaction to the decision of the High Court. In particular, the paper challenges any notion that the result was seen universally as consistent with existing principles of the law of imprisonment and the law of contract. The paper also considers a less obvious context of the decision - the federation context. Drawing on incidents in the court room that did not make it into the official reports, and on the press reaction to the decision, the paper argues that at least some of the criticism was directed to the nature of the High Court as a final appellate court from the states. This context is enlivened by the status of the plaintiff, Archibald Nugent Robertson, who had been a campaigner against federation in the 1890's. In broad terms this issue was before the Privy Council and its short decision rejecting Robertson's appeal - without considering in any detail the federation issue - may be seen as affirming the legitimacy of the High Court as the final court of appeal in Australia.