Wednesday 12 June 2024 at 5: 15 pm

The History of Precedents – Legal History tutorial by Robert

A reminder of our tutorial next week by Robert Turnbull in Court 13A, Level 13 Law Courts Building 184 Phillip Street Sydney.  Robert provides this outline:

• How did a legal system evolve from 12 to 15 judges sitting at Westminster Hall propounding principles of law for a population of 2 million, to a complex federal system with hundreds of judges sitting at various levels of appeal, in dialogue with judges from around the world?

• The history of precedent is bound up with two other institutional pillars:  law reporting and appeals.  How have those facets of legal history borne upon the development of the common law and the principles of equity?

Robert’s biography:  Robert is a barrister at 8 Wentworth Chambers.  He practices in commercial, public law, white collar crime and tax, as well as other areas.  Robert was formerly a solicitor at Clayton Utz, and Slaughter and May.  He last gave a Forbes Society tutorial in 2014, and delivered the Thirteenth Annual Forbes Lecture in that year.

No registration is necessary for in person attendance – if you are unable to attend in person, to receive a link for online viewing please register with this link Legal History Tutorial by Robert Turnbull – The History of Precedents 12 June 2024.   After registering you will receive an email confirmation which contains the viewing link (joining with camera and sound are disabled).

We are grateful to Chief Justice Bell for his kind permission to use Supreme Court facilities.

6 May 2024

Automating Empirical Legal Research

Dr Ben Chen presented a Forbes Legal History Tutorial on “Automating Empirical Legal Research” in person at the Law Society, Level 2, 170 Phillip Street (Rooms 201 & 202) on 6 May 2024 @ 5.15pm.

Ben spoke on empirical legal research which involves learning from a large number of judgments, legislative materials, or other documents. For example, legal historians may wish to investigate how hundreds or thousands of cases fitting some description have developed over several centuries. While empirical research can be rewarding, it can also be costly, time-consuming and mundane. Sydney Informatics Hub and Ben are developing a web-based program to reduce the cost of doing empirical research, using judgments as a test case.  Called the Empirical Legal Research Kickstarter, this program seeks to make empirical research viable without a large budget and an army of research assistants.

Pilot versions of the Empirical Legal Research Kickstarter can automatically search for and download judgments of select Anglo-Australian jurisdictions. This program can also automatically produce common data formats with case-specific descriptions/features. For example, a spreadsheet with rows of judgments and columns of catchwords/keywords, hearing dates, decision, decision date and so on. Moreover, the program can instruct GPT — a generative AI — to do much of the menial work traditionally done by research assistants.

Pilot versions of the program are available at:

(NSW) https://empirical-legal-research.streamlit.app

(CTH) https://cth-empirical-legal-research.streamlit.app

(UK) https://uk-empirical-legal-research.streamlit.app

Ben’s bio: Ben Chen is a Senior Research Fellow at the University of Sydney Law School, a Councillor of the Francis Forbes Society for Australian Legal History, and a former Tipstaff to Justice Geoff Lindsay. Ben writes in the areas of equity and trusts, civil procedure, succession law, and game theory. He has published his research in leading academic journals based in Australia, the United Kingdom, and the United States. His works in legal history have been cited extra-judicially by judges of the New South Wales and Queensland Courts of Appeal. The Australian Research Council is currently funding his research on costs and delay in litigation over inheritance.

1 November 2023

The Slander of Women

On 1 November 2023 Dr Jessica Lake presented a tutorial The Slander of Women: Australia and the gendered reform of defamation in the 19^thcentury common law world in Court 13A, Level 13 Law Courts Building.

In the nineteenth century, a gendered reform movement known as the Slander of Women Acts swept through the common law world, making it easier for women to sue for defamatory allegations of sexual immorality. Under these changes, first initiated in New Jersey in 1790, a woman called a ‘whore’ or ‘unchaste’ could bring a civil action for slander without the burden of proving ‘special damage’. These reforms, while technical in language, reflected important shifts in understanding about gender, social status and speech and carried significant social and cultural implications. At one level, they enabled individual women to vindicate their reputations, obtain financial compensation and silence vituperative attacks. More broadly, the Slander of Women laws overturned centuries of English precedent – structured around class hierarchies, shaped to address men’s injuries, and premised on distinctions between common law and ecclesiastical courts. In the USA, these reforms connected with revolutionary sentiments, an emphasis on ‘character’ and a paternalistic desire to ‘protect’ the purity of republican wives and daughters. But what spurred the Australian colonies – New South Wales, South Australia, and Victoria in particular – to break with England on this issue? How did new significance of respectability, ideas of civilisation, and conditions of commerce influence the direction and development of defamation laws in these far-flung colonies? Drawing upon archival research funded in part by the Francis Forbes Society, this presentation will examine Australia’s place within this global reform movement

Jessica is a Senior Research and ARC DECRA Fellow in the Institute for Humanities and Social Sciences at the Australian Catholic University in Melbourne. Her first book, The Face that Launched a Thousand Lawsuits: The American Women Who Forged a Right to Privacy, was published with Yale University Press in 2016. Her second book on the transnational and gendered history of defamation law is forthcoming with Stanford University Press.

‘The curious history of the nationhood power’

The first of our very popular legal history tutorials for 2023 was delivered on Monday 6 March 2023  by Professor Emerita, Anne Twomey, Professor of Constitutional Law and Director of the Constitutional Reform Unit at Sydney Law School. Professor Twomey’s topic is ‘The curious history of the nationhood power’ and she provided the following outline:
Hidden away in the round tower of Windsor Castle is a letter from Sir Isaac Isaacs to the King about one of the greatest constitutional crises that Australia had yet seen – the dismissal of the Lang Government.  It contains the first strands of what would come to be a nationhood power to deal with national emergencies.  This tutorial will trace the historical development of the nationhood power, with a particular focus on the pivotal judgment of Sir Anthony Mason in the AAP case, and its role in the COVID-19 pandemic as a power to deal with emergencies.

24 October 2023 

Megan Cameron (University of Sydney) ‘The work of magistrates in early colonial New South Wales’

Megan Cameron whose research at the University of Sydney Law School is supported by a 2022 Forbes Fund grant, is presenting a legal history tutorial on The work of magistrates in early colonial New South Wales, in Court 13A, Level 13 Law Courts Building, 184 Phillip Street Sydney on 24 October 2023, starting at 5.15pm.  No registration is necessary for in person attendance – for online viewing please register here: Legal History Tutorial by Megan Cameron 24.10.23

Megan is a PhD candidate at the Sydney University law school.  Her thesis is about the magistrates of the early New South Wales colony (1800-1835).  Megan is examining the powers given (and taken) by magistrates, and their interaction with three convict rebellions.  Those rebellions are the Vinegar Hill rebellion of 1804, the Ribbon Boy rebellion of 1830, and the Castle Forbes uprising of 1834.  In examining those three rebellions, Megan will show how magistrates had both power which was given to them (through their commission of the peace, and their oath of office), and power which they took (powers derived from statute, and from the personal gravitas of each magistrate).  The work will show that magistrates had a substantial degree of personal power, which they exercised particularly in relation to convicts in the early colonial period.

11 April 2023   Professor Peter Gerangelos AM (Professor of Constitutional Law at Sydney Law School) “’An Historical Constitutional Approach’ and the General (Non-statutory) Executive Power of the Commonwealth – History as Method: ‘Ancient’ Solutions to Current Problems”.

18 April 2023

 “Art and the Law: The Archibald prize case of 1944 and beyond” by Dr Peter Edwell and the Hon Keith Mason AC KC.

When the dispute over the award of the Archibald Prize to William Dobell went to the Supreme Court of NSW in 1944 it made headlines around Australia. With Garfield Barwick as counsel for the relators and Frank Kitto acting for the respondents, the legal arguments and tactics employed in the case took centre stage in one of Australia’s most famous court dramas. Behind the scenes, art and the law were strongly connected with the influential figure of Lionel Lindsay playing an important role in the case and possessing strong links with business, political and legal powerbrokers, especially Chief Justice Frederick Jordan.  This lecture investigates some key aspects of the case and the influences at play on Barwick and Kitto. It also examines connections between Lionel Lindsay and Chief Justice Jordan together with the controversy behind the creation of Mary Edwards’ portrait of Jordan that hangs in the Banco Court today.

Keith Mason served as Solicitor-General of New South Wales (1987-1997) and President of the NSW Court of Appeal (1997-2008). In 2019 he published the first biographical study of Chief Justice Frederick Jordan (Sir Frederick Jordan: Fire under the Frost) and has published other material on Jordan and his connections to the art world in the 1940s.

Peter Edwell is Senior Lecturer in the Department of History and Archaeology at Macquarie University. His most recent book, The Case that Stopped a Nation: The Archibald Prize controversy of 1944, deals with the controversy surrounding the award of the Archibald Prize to William Dobell for his portrait of fellow-artist Joshua Smith. It is the first detailed study of the controversy and court case and was short-listed for the Prime Minister’s Literary Awards in 2022.

24 May 2023

“The effect of the American Civil War on the law of contract” by Michael Adams, a PhD candidate at Columbia Law School and the current Counsel Assisting the NSW Solicitor General

Our last event, the tutorial by Skye Krichauff of the University of Adelaide: The South Australian Frontier and its Legacies: a truth telling project, chaired by Dr Ben Chen (Councillor).  Skye is working with Associate Professor Robert Foster, whose project ‘Reconciling the Frontier’ received support from the Forbes Fund in 2022.

Abstract: Skye Krichauff is a primary researcher for an Australian Research Council project that maps the extent and nature of conflict between Aboriginal people and colonists on the South Australian frontier (c. 1836 to 1900).  The project emerges out of the Uluru Statement from the Heart‘s call to engage in ‘truth-telling about our history’.  In addition to examining archival sources, Skye has been working with Aboriginal communities and recording both Aboriginal people’s and settler descendants’ oral histories.  The information gathered is compiled in a software platform called ‘Story Maps’ which allows the project team to incorporate multimedia forms of visualisation (electronic documents, charts and graphs, images, audio and video recordings).  During this presentation, Skye will outline the aims, methodology and findings of the project, and demonstrate the features and workability of the story map.

July 2023

Tutorial Paper

Dane Luo, Associate to the Hon Justice Hammerschlag, Chief Judge in Equity delivered a a fascinating paper titled: Australia’s Constitution and her British Ties at our Legal History Tutorial on 24 July 2023. A copy of the paper is here: Path to Independence by Dane Luo (24.7.23)

2022

Tutorials

The first Forbes Society tutorial of 2022 was Wednesday 23 February 2022 at 5.15pm in the Banco Court  presented by Dr Coel Kirkby of the University of Sydney, on the “History of Jurisprudence”.
There was a formal presentation by the President of the Forbes Society, Chief Justice Allsop of the Federal Court of Australia, to the Honourable T F Bathurst AC, Chief Justice of New South Wales, recognizing his support for the Society during his term as Chief Justice, on his retirement from the Court;

2022 joint presentation for the Ngara Yura Committee of the Judicial Commission of NSW and the Francis Forbes Society for Australian Legal History – the third annual joint presentation was delivered by the Hon Lucy McCallum, Chief Justice of the ACT Supreme Court, titled “The fallacy of protectionism.”  The paper  addressed the historical background to the so-called “protectionist” policies of the last century, their abject failure in achieving their stated goals of protecting First Nations peoples and the reckoning to be done to avoid such mistakes in the future.

Justice Lucy McCallum

The presentation was chaired by Ngara Yura Committee member, the Hon Justice Rachel Pepper of the Land and Environment Court.  It will be delivered on Thursday 10 November 2022 at 5.15 pm – in person in Court 1, Federal Court of Australia, Level 21 Law Courts Building, Queens Square, 184 Phillip St Sydney

Justice Rachel Pepper
The Ngara Yura Committee and the Forbes Society are grateful to the Hon James Allsop AO, Chief Justice, Federal Court of Australia, President of the Forbes Society and Ngara Yura Committee member, for use of Federal Court facilities for the presentation.
2022 Tutorials
Our latest legal history tutorial was delivered by Declan Noble on “A partial history of the Public Law Injunction in Australia” on Tuesday 22 November 2022 at 5.15pm in Court 13A, Law Courts Building, Queens Square, 184 Phillip St Sydney.
Declan is currently Associate to the Hon Justice Jeremy Kirk in the New South Wales Court of Appeal. In 2021, he was tipstaff to the Hon Justice Richard White, also in the New South Wales Court of Appeal. He completed a Bachelor Arts in Classics (Hons I) and a Bachelor of Laws (Hons I) at the University of Sydney.
His LLB Honours thesis, titled “The Section 75(v) Injunction: History and Principles”, examines the development in Australia of the public law injunction over the course of the 20th century, especially in constitutional contexts. It will be published in the Australian Law Journal in January 2023.
The Society is very grateful to Chief Justice Bell for his generous permission to use Supreme Court facilities.

Some recent events

Thank you to Dr Patrick Graham (School of Law, University of New England) for presenting the 2022 Plunkett Lecture “The Unlikely Reformer: Sir John Latham and the Australian Constitution” on Thursday 27 October 2022.
Dr Graham received a grant from the Forbes Fund in 2021 for his project “Sir John Latham and constitutional autochthony.”
Sir John Latham was Chief Justice of the High Court of Australia from 1935 to 1952

Dr Patrick Graham is a lecturer in law at the University of New England. He researches in legal history, particularly on emergency power, and constitutional law and theory. He has most recently published on the constitutionally implied freedom of political communication and Sir John Latham’s constitutional thought. Patrick’s doctoral thesis looked at the use of emergency power in early twentieth century England. Patrick is from Ireland and studied law at the London School of Economics and Queen Mary, University of London.

Thank You to
Dr Henry Kha (Senior Lecturer, Macquarie Law School)
for his tutorial on Tuesday 27 September 2022

Synopsis

The enactment of the Matrimonial Causes Act 1959 (Cth) was a significant moment in the history of Australian family law.  The Act unified the divorce law under a single federal statute.  It is argued that the introduction of the Act was driven based on modern conservatism.  The Act promoted the social conservatism that was prevalent during the Menzies era of the 1950s by preserving many of the existing grounds for divorce and barring divorce to married couples in the first three 3 years of marriage.  On the other hand, it was a legal change driven by modernity and the unification of Australian divorce law was part of the project of nation building.  Moreover, the Act introduced separation of five 5 years as a no-fault ground of divorce.  This eventually paved the way for the introduction of no-fault divorce in Australia under the Family Law Act 1975 (Cth).  The tutorial  explored the legal and political changes that led to this divorce law reform.