Legal History Project

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

This project was funded by an Australian Research Council Discovery Grant and undertaken by Professor Mark Lunney of the UNE School of Law as Chief Investigator and Professor Paul Mitchell of University College London, as Partner Investigator. The project explores 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 collates all of the reported cases on the law of tort from the superior courts of Australia and analyses the key decisions to evaluate whether the traditional view understates the capacity for genuine innovation in the development of Australian tort law. In doing so, this also makes an important contribution to intellectual history in Australia more generally by showing that legal discourse was far more indigenous than crude notions of 'cultural cringe' would have us believe.

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 A.W.B. Simpson to deconstruct 'leading' cases, Professor Lunney has published several ground-breaking case studies demonstrating that broad assertions that Australian law simply followed English law are too simplistic. Professor Paul Mitchell, the Partner Investigator, is the leading historian on the law of tort in the United Kingdom. Apart from numerous articles, including the history of Australian defamation law, Professor Mitchell published “The Making of the Modern Law of Defamation in 2005, the first modern history on the subject and in 2015 “A History of Tort Law 1900-1950”. His involvement in the project enabled important comparative conclusions about the relationship between English and Australian law.

The primary outcome was the academic monograph on this subject, “A History of Australian Tort Law 1901-1945: England's Obedient Servant?”. Another important outcome was a series 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 substance and procedure that took place in private law in 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, regulation or law reform and 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.