Legal History Project

 England's Obedient Servant? The History of Australian Tort Law 1901-1945

This project, funded by a three year ARC Discovery Grant, is being undertaken by Professor Mark Lunney of the School of Law at the University of New England (as the only Chief Investigator on the project) and Professor Paul Mitchell of University College London (as Partner Investigator). The project is exploring the common view that in areas of private law, including the law of tort, Australian law, particularly judge-made law, was subservient to the English law on which it was based. The project will collate all of the reported cases on the law of tort from the superior courts of Australia and will analyse key decisions to evaluate whether the traditional view understates the capacity for genuine innovation in the development of Australian tort law. In doing so, it will also make an important contribution to intellectual history in Australia more generally by showing, as has been done in other fields of intellectual endeavour, that legal discourse was far more indigenous than crude notions of 'cultural cringe' would have us believe.

The project leader, Professor Mark Lunney, has an extensive publication record in legal history, tort law, and, in particular, the modern history of tort law. Using the granular approach adopted by AWB Simpson to deconstruct 'leading' cases, Professor Lunney has published a number of ground-breaking case studies demonstrating that broad assertions that Australian law simply followed English law is too simplistic. Professor Paul Mitchell, the Partner Investigator, is the leading historian of the law of tort in the United Kingdom. Apart from numerous articles,  including articles on the history of Australian defamation law, Professor Mitchell has published the first modern history of the law of defamation (The Making of the Modern Law of Defamation (Hart, 2005)) and in 2015 will publish a history of tort law in England in the first half of the 20th century. His involvement in the project will allow important comparative conclusions about the relationship between English and Australian law to be drawn.

The primary project outcome will be an academic monograph on this subject of the grant. However, another important outcome is the holding of a number of seminars and conferences, the most important of which are detailed below:

Private Law at the end of Empire: Perspectives from Home and Abroad

This symposium, which forms part of a wider project described above, addressed the under-researched area of the history of private law: the changes in both substance and procedure that took place in private law the first half of the twentieth century in England and its Empire/Commonwealth. Invited speakers – all experts in the field and representing a number of Commonwealth countries – included Professors Stuart Anderson and Geoff McClay from New Zealand, Professor John McLaren from Canada, Professor Mike Grossberg from Indiana University, and Professor Paul Mitchell from University College London as well as distinguished contributors from throughout Australia. The speakers commented on the particular aspect of legal change in this period in their own jurisdiction. This included leading cases, pieces of legislation or other regulation, or law reform or public criticism of a particular area of law. The speakers from the old Empire/Commonwealth jurisdiction made some comparisons with contemporaneous English developments to allow for comparative analysis.

The symposium was held in December 2014 in the beautiful dining room of the iconic Booloominbah, a grand 19th century house that served as the initial premises of the University of New England when it opened in 1954. Within Booloominbah, the stunning Gordon window is a prescient reminder of the ambiguous links that bound the Commonwealth together during this final phase of the British Empire.

Law's Empire or Empire's Law?: Legal Discourses of Colonies and Commonwealths

Although not a formal output from the project, the School of Law hosted the 33rd Annual Conference of the Australia and New Zealand Law and History Society. The conference, was held between December 10-13, 2014 in Coffs Harbour on the beautiful mid-north coast of New South Wales. It provided wide scope to discuss law and history in a variety of settings. An important context of the conference was the interrelation between imported laws of a parent jurisdiction and their application to other domains, both jurisdictional and geographical.