Issue 16 No.2

Articles

Professor Megan Richardson (The University of Melbourne)

A Display of Questionable Taste: False Labelling of a Prize for Pickles at the International Exhibition 1862

In the English case of Batty v Hill decided in 1863, the plaintiff objected to the defendant’s labelling of his pickles as ‘Prize Medal, 1862’, pointing out that the representation was false. The fact that these words were stamped in a conspicuous manner on the cases in which the defendant exported his pickles to the Australian colonies, appeared to be a source of particular grievance to Batty – a reputable pickle merchant who had been granted a medal in the category of pickles and preserved fruits at the 1862 International Exhibition of the Industrial Arts and Manufactures in London, and who also exported to colonial markets. There was no disagreement that Hill’s assertion of a prize medal won at the same Exhibition was a deliberate lie. Yet the application for an injunction was unsuccessful. The Vice-Chancellor Sir William Page Wood said that ‘[i]t is obvious that this Court cannot interfere simply on the ground that this is a misrepresentation’ and ‘[the defendant] must be held entitled to use these labels, false though they be, if they do not interfere with the plaintiff’s rights’.  In short, the fact that the plaintiff could demonstrate no injury to his ‘rights’ flowing from the defendant’s false labels meant that he had no basis to obtain a remedy. This article considers why it was so obvious that a misrepresentation was not sufficient for a court to grant a remedy in 1863.  In investigating this question, the author concludes that it may simply have been that deceptive trading was widely practiced in Victorian markets, and especially when it came to the distant colonies, this being a time when, as the Vice-Chancellor noted, quoting Horace, ‘rem facias, rem, si possis, recte; si non, quocunque modo, rem’ (make a fortune honestly if you can; if not, make it by any means).

Dr Sharon Rodrick (Monash University) and Dr Adiva Sifris (Monash University) 

100 Years of Open Justice in Family Law Proceedings in Australia

This article recounts the history of the principle of open justice in family law proceedings in Australia. It takes as its starting point the seminal case of Scott v Scott, decided by the House of Lords in 1913, in which open justice reached its zenith, and traces how the strength of that principle in the context of family law proceedings has fluctuated in the 100 years since the Scott case was decided. These fluctuations it is argued, have been the product of attempts to accommodate competing public interests, such as the perceived need to protect public morality and, more recently, the desire to safeguard personal privacy.

Dr Janet Ruffles

The Management of Insanity Acquittees in Victoria: An Historical Perspective on the Operation of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) 

The introduction, in 1997, of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘CMIA’) marked a dramatic reform of the common law system governing the detention, management and release of persons found not guilty by reason of insanity in Victoria. The Act abolished the Governor’s pleasure system and set out the law and procedure for determining whether a person is unfit to stand trial and whether a person is not criminally responsible for an offence due to mental impairment. Additionally, the CMIA established new procedures for the supervision and management of people found unfit to stand trial or not guilty by reason of mental impairment, a statutory defence established by the Act which abrogated the common law defence of insanity.  This article provides a detailed discussion of the law regarding the insanity defence and the consequences that flow from the verdict, including an overview of the history of the insanity defence, the genesis of the CMIA and a summary of the main legislative changes introduced by the Act.  It examines the operation of the CMIA in light of its underlying principles and evaluates the extent to which the Act has achieved its aims, before assessing the desirability of the proposed reforms. 

Book Extract

Leonora Ritter and Jim Windeyer

William & Mary Windeyer: Law, Politics and Society in Colonial New South Wales (Australian Scholarly Publishing, 2016)

This book extract provides a glimpse into the world of Sir William and Mary, Lady Windeyer.  Sir William and Mary, Lady Windeyer were a significant couple in 19th century New South Wales, he in politics and law, she as advocate for the rights of women and children. In politics, William was close to Henry Parkes, especially on education for both girls and boys, and he worked for women's equal rights in property and divorce. As a judge he was often controversial in his conduct of criminal trials, but in other cases his judgements were highly regarded and he not unreasonably aspired to a seat on the Privy Council. Mary advocated in similar fields, as president of the Womanhood Suffrage League of NSW and the Crown St Women's Hospital, and in fundraising for the Sydney University Women's College and promoting the foster care of children through the foundation of the Boarding Out Society.

Book Review

Marc Trabsky (La Trobe University)

Simon Smith (ed), Judging for the People: A Social History of the Supreme Court of Victoria 1841-2016 (Allen & Unwin, 2016)

This book review provides an overview of the recently published an copiously illustrated Judging for the People: A Social History of the Supreme Court 1841-2016. Commissioned by the Chief Justice, the book contains robust contributions from thirteen distinguished law and history scholars. Together they canvass topics as diverse as the pioneering and influential judges themselves, the first lawyers, the unsung heroes of the court, the changing nature of the courtrooms and buildings, the divorce jurisdiction, the death penalty, the circuit court, forensic medicine and the role of the court reporter. The research by these scholars brings a new and different perspective to the place of the Supreme court in the community.