From: Frederick Wilmot-Smith <frederick.wilmot-smith@all-souls.ox.ac.uk>

Sent: Wednesday 10 June 2026 22:23

To: Samuel Beswick; obligations

Cc: Matthew Hoyle; Neil Foster

Subject: Re: HCA on liability for false imprisonment under mistaken view of law

 

I don't find the distinction the plurality draw between Stradford and this case convincing: see §40 of Abdel. True enough, there was an order in Stradford - but it looks to me like the plurality held that the order was invalid ab initio (i.e. it's not like an ordinary order that is valid until set aside, where the analysis would be different). See plurality of Stradford at §11, §53, §73.

 

We are told that giving a defence to the jailer who locks me up without lawful authority 'best serve[s] ... the authority of judicial proceedings': §150 of Stradford. I think the suggestion is that if the jailer has to pay damages if they lock me up without lawful authority (relying on an invalid order), there is a risk that officials simply won t obey any court orders. I rather doubt that. It is also a quite extraordinary impingement on individual liberty on a speculative hypothesis. So Stradford (on the plurality's reasoning) looks wrong: if there is no lawful authority to detain a person, that person should get compensation for the detention.

 

On the Abdel case itself, I don't think the plurality's decision is easily reconciled with that in Stradford. Why is there a bigger threat to the rule of law if a jailer chooses not to obey an order (which is not legally binding! See §53 of Stradford again; but how is that reconciled with §43 of Abdel?) than if they choose not to obey the ratio of the High Court of Australia's (legally binding!) interpretation of a statute? The burden of the argument at §43 seems, ultimately, to be carried by italics.

 

Fred

 

From: Samuel Beswick <sbeswick@sjd.law.harvard.edu>
Date: Wednesday, 10 June 2026 at 19:17
To: obligations <obligations@uwo.ca>
Cc: Matthew Hoyle <MHoyle@oeclaw.co.uk>, Neil Foster <neil.foster@newcastle.edu.au>
Subject: Re: HCA on liability for false imprisonment under mistaken view of law

 

Thank you, Matthew! 

 

It is good to see the HCA holding the line on orthodox common law adjudication. The Court reaffirms the retrospective effect of judicial changes in the law, and the declaratory theory of judicial law-making -- which, properly understood, is not an oxymoron. See paras 37, 48, 120, 130, 155-157, 207, 217. The Court rejects the doctrine of prospective overruling: paras 83, 158. It affirms that mistake of law is no excuse in tort. There is more joy in heaven, as Rob (and Luke) would say. 

 

The judgment may well be relevant to a case pending before the Supreme Court of Canada, Aphria v. Canada Life Assurance, which was discussed on the ODG previously. During that hearing the judges enquired about changing the doctrine of mitigation for commercial lease breaches with prospective-only effect. Counsel for the appellant who was seeking the doctrinal change responded that to do so 'would be the death of the common law'. I wrote about it in a blog post, linking to timestamps to key points in the hearing webcast: 

 

'Aphria Inc. v. Canada Life Assurance Co.: Can the common law be changed with prospective-only effect?' The Court.ca (Mar. 12, 2026), https://www.yorku.ca/osgoode/thecourt/2026/03/12/aphria-inc-v-canada-life-assurance-co-can-the-common-law-be-changed-with-prospective-only-effect/

 

 

An interesting absence from the HCA's judgment in Abdel-Hady is the word "limitation". Can someone tell me what would be the governing limitations statute? I gather there isn't a single statute for federal court claims. There is news reporting that this case will trigger a flood of compensation lawsuits. If that does happen, the lower courts should take care not to make the same mistake the English courts did in the tax restitution cases -- of treating the date of the HCA's judgment "changing" the law (in this case, 8 November 2023 -- see para 20 of Abdel-Hady) as the date from which the limitation period on claims commences. An MLR case note of then-Reader-in-Law James Edelman had steered the courts down that fraught path. It continues to muddle English limitations law, despite the UKSC's intervention rectifying the test in FII Test Claimants #2. On which, see https://ssrn.com/abstract=5141918

 

Thanks for sharing this case, Neil! I always appreciate your posts. 

 

Warm wishes,

Sam

 

On Wed, 10 Jun 2026 at 00:58, Matthew Hoyle <MHoyle@oeclaw.co.uk> wrote:

Thanks Neil. It is good to see the HCA holding the line against qualified immunity. Probably already known to many on this list, but I commend Sam Beswick's work on this topic (particularly 'Equality under the Ordinary Law'). 

 

Looking at the comparisons drawn by the HCA, I wonder if it is a line which cannot be held where a jurisdiction has hard edged judicial review of primary legislation on very wide, open textured, grounds (eg 14th Amendment in the US, Section 7 of the Charter in Canada). When any statute, no matter how clear, is vulnerable to being struck down in unexpected ways, it is necessary to give public officials more protection than in systems where either (a) they can't be struck down at all, such as the UK or (b) the grounds of review are much narrower, such as Aus. 

 

Matthew Hoyle

Barrister

One Essex Court

 

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From: Neil Foster <neil.foster@newcastle.edu.au>
Sent: Wednesday, 10 June 2026 03:21:29
To: obligations@uwo.ca <obligations@uwo.ca>
Subject: ODG: HCA on liability for false imprisonment under mistaken view of law

 

 

Dear Colleagues;

The decision of the High Court of Australia handed down today in Abdel-Hady v Commonwealth of Australia [2026] HCA 17 (10 June 2026) reaffirms the principle that it is no defence to an action for false imprisonment by a government official that they reasonably thought they were complying with the law.

The background is that Mr Abdel-Hardy is a non-citizen who would have been subject to deportation, except that circumstances (here a health condition) meant that there was no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future. A prior decision of the High Court had held that his detention was still justified in those circumstances (Al-Kateb v Godwin (2004) 219 CLR 562); but the more recent decision of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137 had over-ruled this. Hence Mr Abdel-Hady's detention was now known to have been invalid from the date it was known that he could not practicably be removed until the date of the decision in NZYQ. He is suing the Commonwealth for false imprisonment for that period.

All 7 members of the court agree that his action should succeed, and that neither the Commonwealth nor their officers have a valid defence to the action for false imprisonment. They agree with the similar persuasive decision of the UK House of Lords in R v Governor of Brockhill Prison; Ex parte Evans [No 2] [2001] 2 AC 19 (itself following a decision of the NSW Court of Appeal in Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714.)

One of the Commonwealth's key arguments was that this case was analogous to the decision of the High Court in Queensland v Stradford (a pseudonym) (2025) 99 ALJR 396; 421 ALR 376 , where it was held that imprisonment of the plaintiff by court officers acting under judicial orders did not give rise to civil liability. There are interesting discussions of Stradford and some difference of opinion within the court as to the basis for that decision, but in the end all the court here agree that for constitutional and separation of powers reasons, an immunity from suit should attach to officers executing court orders, which does not attach to public servants acting on their own view of the law. Perhaps where some will see this as very stark in cases like this, where the public servants were acting in direct reliance on the High Court decision in Al-Kateb. But as the members of the court here all agree, the ultimate source of authority for detention had to be found in legislation, and the High Court has the power to over-rule its own previous interpretation of the legislation. (Authorities from the US and Canada taking a different view were mentioned, but in the end ruled not to be persuasive given the differing constitutional arrangements in place in Australia.)

Edelman J differs to some extent from the other members of the court (though there are 5 separate judgments, so his Honour was not the only member of the court to offer his own perspective.) The question is whether it was necessary to consider two possible different rationales for liability- either 'direct' liability where the public servants could be seen as true 'agents', or vicarious liability (accepting the analysis of the three different types of 'strict' liability accepted in Bird v DP.) Most of the court simply noted that the Commonwealth had conceded vicarious liability; Edelman J seemed to think that agency liability was the more correct analysis. But in the end this did not make a difference to the outcome.

The Commonwealth had in broad terms accepted that they could not succeed on the existing law, and had tried to argue for the development of a 'novel' defence applying in very limited circumstances. But as the members of the court generally noted, the limits of the Commonwealth's suggested defence were uncertain and inconsistent with general principle. To quote the plurality (Gageler CJ, Gleeson & Beech-Jones JJ): 

 

[7] No such common law defence should be recognised. No development of the common law can be inconsistent with constitutional principle. Far from protecting the judicial declaration of the law and enhancing the responsibility of the executive branch of government to ascertain the law that limits its own power and to comply with that law, as the Commonwealth argues, recognition of the propounded common law defence would subvert the accepted foundational constitutional principles of judicial authority and executive responsibility. It would transform the responsibility of an officer of the executive government of the Commonwealth to ascertain and comply with the law that limits the power of the officer into a common law immunity from a common law consequence of action which has subsequently been judicially determined to have transgressed such a legal limit and therefore to have exceeded that power. (emphasis added)

 

Regards

Neil

 

NEIL FOSTER

Associate Professor, Newcastle School of Law and Justice

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