Welcome to 2024 – The 200th Anniversary of the establishment of the Supreme Court and Legislative Council.
Legal History tutorial: Our next tutorial is by Dr Lucas Clover Alcolea of the University of Otago Faculty of Law on Monday 18 March at 5.15pm in Court 13A, Level 13 Law Courts Building 184 Phillip Street Sydney.
His topic is ‘A brief history of licences over land: From contract to property and back again?’ and he gives this outline:
It has been stated “There is almost no aspect of the law relating to licences over land which has not, at some time or another, given rise to problems.” Although one might be tempted to lay much of the blame for this situation at the feet of Lord Denning’s (in)famous creativity from the 1950s to the 1980s, this would be a little unfair as licences over land have always “occupie[d] the uncharted borderland between contract and real property and [have therefore been] caught by conflicting terminologies and different ways of thinking.” This presentation will briefly outline the three stages of the law as regards contractual licences, orthodoxy which regarded licences as purely personal rights, Denning who transformed certain licences into proprietary or quasi-proprietary rights, and the ‘return to orthodoxy’, before noting that they have continued to experience significant remedial growth even in their new orthodox era.
Thus, courts in England and Australasia have been willing to grant licensees relief from forfeiture, specific performance, injunctive relief, and the ability to bring trespass claims, despite the fact that these remedies were traditionally restricted to proprietary rights, specifically leases. After analysing these developments, the presentation will consider whether the post-Ashburn Anstalt distinction between granting proprietary relief for licences whilst insisting on their personal nature, and actually recognising them as proprietary, is a tenable one. Ultimately, it will be submitted that it is not ‘heretical’ to describe certain licences over land as, at least weakly, proprietary in certain circumstances and such a development is entirely in line with the ‘arc of [equitable] history’ given equity’s ‘reificatory’ tendency.
Note our later Tutorial:
12 June Robert Turnbull, barrister (8th Floor Wentworth Chambers) and previous tipstaff to the Chief Judge in Equity the Hon P A Bergin – legal history tutorial on ‘The History of precedent’
Supreme Court Bicentenary events –
Book and Gallery launch: An illustrated history of the Supreme Court “Constant Guardian: Changing Times – The Supreme Court of New South Wales 1824-2024” will be launched by the Hon. James Spigelman AC KC on Wednesday 3 April at 5.15pm in Banco Court, Level 13 Law Courts Building 184 Phillip Street Sydney. More details on the book and purchase details are at: https://constantguardian.info/
On the same occasion, Her Excellency the Honourable Margaret Beazley AC KC, Governor of New South Wales will officially open the Supreme Court History Wall and Gallery. The history will be available for purchase on the night and subsequently. With limits on seating, there will be a livestream in Court 13A: see Bicentenary events (InBrief). A link to the Court’s Bicentenary page is here Bicentenary of the Supreme Court
Plunkett Lecture is now available:
The lecture “Unheralded nation-builder: another dimension of John Hubert Plunkett” and details of the events are available at: 2024 12th Plunkett Lecture Bell CJ
2024 Plunkett Lecture Programme (13.02.24)
The Lecture was chaired by the Hon. James Allsop AC, President of the Forbes Society and followed by Formal presentations to prize-winners in the Forbes Society’s Australian Legal History Essay Competition.
Congratulations to all our participants and winners. Details are:
Australian Legal History Essay Competition for 2023 – we are delighted to announce the results of the 2023 Essay Competition.
We were very pleased to receive submissions from a wide range of schools and tertiary students within and outside NSW: Glen Waverley Secondary College in Victoria, the Australian National University and the University of Queensland. There were 29 essays in the junior secondary category, 7 essays in the senior secondary category, and 10 essays in the tertiary category.
The Senior Secondary winner is Thomas Blanch for his essay, “Not for Publication: The Opera House Lottery and the Murder of Graeme Thorne”
Max Galanti received a commendation for his essay “Family Ties: The History of Divorce Legislation in the Commonwealth of Australia”
Gene Richards received a commendation for his essay “Irregulated: A brief overview of Australian Media Law”
The Junior Secondary winner was Kevin Wu for his essay, “The Australian Alien”
Jennifer Ou received a commendation for her essay, “Did I pass, Factors that affected the success and failure of the 1967 and 2023 referendums on indigenous struggles”
Alice Zhang-Kim received a commendation for her essay “Did the Disability Discrimination Act (1992) succeed in its historical aim of creating a “groundbreaking” legislative framework for protecting disabled people in the workplace?”
Isabella Aun received a commendation for her essay “Does the Federal System still offer advantages to the modern Australian state”
The students’ schools were (alphabetically) Abbotsleigh, James Ruse Agricultural, Normanhurst Boys.
The Tertiary winner is Archie Hornerman-Wren for his essay, “The facts as we know them today’: Law, narrative, and the Mabo decision as an exercise in Australian historiography.”
Jack Zhou received a commendation for his essay “A ‘dismal swamp’ down under: A history of Australian conflict of laws”
Laura Dawes received a commendation for her essay “’And along came DNA: The introduction of DNA evidence in Australian courts in the Applebee case”.
The tertiary institutions were ANU and UNSW.
In news after our December update, the prize supported by the Francis Forbes Fund for the best presentation by a higher degree research student or an early career researcher at the ANZLHS annual conference was awarded to Ash Stanley-Ryan for the paper ‘Ka mua, ka Muri: He Whakaputanga, Concealed Indigenous Histories, and the Making of International Law.’ This paper is to be published, subject to the usual refereeing process, in law&history. The announcement is here Sir Francis Forbes Society Prize awarded
For further information please contact Simon Chapple SC on secretary@forbessociety.org.au
200th Anniversary of the Supreme Court and the Legislative Council
2024 is a significant year in the history of Law in Australia.
Some excellent original source material is at:
https://www.ruleoflaw.org.au/education/supreme-court-anniversary/
Link to Recent Conference
There will be a number of commemorative events to mark the Bicentenary of the establishment of the New South Wales Legislative Council and the Supreme Court
New South Wales Parliament coordinated a recent conference titled: New South Wales Act 1823 – the spark that ignited 200 years of Parliament and the Supreme Court in NSW.
The various presentations are available at: https://www.parliament.nsw.gov.au/about/Pages/The-Spark-Conference.aspx
Bicentenary Conference 2023: The Spark
Current and former judges, eminent historians, experts and authors explored the history, politics and society of early colonial NSW that laid the foundations for 200 years of evolving parliamentary democracy and the rule of law.
Included was a special panel discussion from Chief Justice of the Supreme Court the Hon Andrew Bell, former Justice of the High Court and Supreme Court Virginia Bell and former President of the NSW Court of Appeal Keith Mason AC KC.
New Book of Note:
We are pleased to note the publication of The Immigration of Irish Lawyers to Australia in the Nineteenth Century by the late Dr John Kennedy McLaughlin AM. This important work of legal and social history shines a light, for the first time, on Irish lawyers in colonial Australia. The book includes a Foreword by the acclaimed Australian historian Professor Stefan Petrow, and a remembrance of the author by the Hon Michael Kirby AC, CMG.
Dr Mc Laughlin delivered the Ninth Annual JH Plunkett Lecture on “John Hubert Plunkett: An Irish Lawyer in Australia” in November 2020.
TUTORIALS
The Society has been very pleased with the high quality of the recent Legal History Tutorials and other events, supported by very capable presenters and made possible by the generous permission of the the Chief Justice of New South Wales Andrew Bell to use the Supreme Court as a venue.
Our most recent presentation was: 1 November 2023
Dr Jessica Lake (ACU Melbourne) ‘The Slander of Women’
Dr Jessica Lake will present a tutorial The Slander of Women: Australia and the gendered reform of defamation in the 19thcentury common law world in Court 13A, Level 13 Law Courts Building, 184 Phillip Street Sydney on 1 November 2023,
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.
ALSO
Recent Forbes Lecture
The 2023 Forbes Lecture presented by the Governor was well attended in Banco Court. The Governor has accepted an invitation to publish the paper in the Australian Bar Review. Courtesy of Geoff Lindsay, we presented to Her Excellency a copy of the first Bicentenary publication: Cases for Opinion – A Bicentennial Miscellany Dr J M Bennett AO & Dr John K McLaughlin AM (eds).
Her Excellency the Honourable Margaret Beazley AC KC
Image Courtesy NSW Government Website
The Forbes Society, and the annual Forbes Lecture sponsored by the Society, are named for Francis Forbes (1784-1841), the first Chief Justice of the Supreme Court of NSW, 1824-1837.
The Following Annual Report was presented at the Francis Forbes AGM 2022 on Tuesday 29 November 2022. ANNUAL REPORT 2022 (25.11.22)
MEMBERSHIP NOTICE:
Our new Membership Application and Renewal Form is now available at: FFS Membership application and renewal 23-24 (v1)
DONATIONS
Have you considered donating to the Society?
The Society welcomes donations to support research activities, such as that outlined in the Current Research Page of this Website. Anyone wishing to donate should download the following form: Fund Donation Form 2023 (v1)
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