Neil James Foster

A LEAP IN THE DARK? EVALUATING THE EVIDENCE lawandreligionaustralia.blog/2026/03/21/a-l… via @NeilJamesFoster

Turns out to have been technical issue on costs. No substantial law involved.

Odd to see that Hunt Leather is back in the High Court next week, Wed at 10, for a "No 2" judgment (according to an email from the court). I can't find any pleadings for this one on the court website. Clarification of the amount of damages? Seems a bit odd. Original decision here: austlii.edu.au/cgi-bin/viewdo…

@jeremy_gans @HighCourtofAus The constitutional issue is the way the low bar of “offend” may unduly interfere with the implied freedom of political speech. Some quite strong comments on this from Hayne J in Monis as part of the “statutory minority”.

Oops, I would've guessed 'drugs': sentencingcouncil.vic.gov.au/sites/default/… 474.17 doing a lot of work. Why doesn't one of those 5.5K defendants bring a @highcourtofaus challenge?

Agreed. Just to be clear, my comment was in the context of folk in Australia previously urging the HCA to adopt “akin” which unduly stretches VL; I think the HCA did it the right way by leaving VL to employment in Bird but providing a remedy for child abuse by non-employees through the NDD doctrine in AA.

@NeilJamesFoster @DominicVillaSC I agree that it is far more principled but Bird had meant the "akin to employment" solution was dead in the water at common law.

Puzzled by this quote in an SMH article on the effect of the AA decision: “North Star Law principal lawyer Michelle Martin said the ruling was a “welcome decision” but warned that institutions could still be shielded from full accountability, as the vicarious liability loophole from the 2024 ruling remained”. The sense seems to be that somehow where abuse was committed by an employee, as opposed to a contractor or volunteer, then Bird would mean no liability for the institution. But this seems wrong. If a non-delegable duty applies to a victim of harm, then the institution who has assumed responsibility for the victim can be held liable for abuse committed by someone they have entrusted to care for the victim, whether that person is an employee or not. So there is no loophole to fix as far as I can tell. smh.com.au/national/nsw/a…

@Bedeapk @DominicVillaSC True but I think done in a way which is more principled and limited than the UK approach of “akin to employment”.

@DominicVillaSC @NeilJamesFoster I know it’s an absolute oversimplification but the practical effect of AA is an end run around Bird

Any thoughts @DominicVillaSC ?

With respect, I disagree. If "strict" liability means "liable without personal fault", that is precisely the effect of the NDD. Yes, in the majority it is Gordon J at [274] who uses the word "strict" itself for this concept. But elsewhere the plurality says at [31] "a non-delegable duty may result in liability being imposed on the duty-holder without personal fault on the part of the duty holder." And I see even Edelman J at [342] says "There is nothing unusual or anomalous about the imposition of strict liability (ie liability in the absence of fault) in the law of torts for infringement of the rights of others." The word "ensure" can be used in attaching liability for a failure to see that abuse did not occur, even in the absence of any fault in that failure. It refers to failure to achieve a result and does not depend on proof of actual carelessness by the duty holder.

Strict liability for abuse committed by non-employees: the AA case lawandreligionaustralia.blog/2026/02/16/str… via @NeilJamesFoster

@mcgee15_ Congratulations, Jeff!

Very pleased and appreciative to announce that I have been appointed as an Australian Department of Foreign Affairs and Trade Visiting Legal Fellow for 2026-2027. Looking forward to working on the intersections between Antarctic, Arctic and Space law during this interesting time.

New federal hate speech laws- impact on religious freedom? lawandreligionaustralia.blog/2026/02/01/new… via @NeilJamesFoster

Football and "transgender vilification"- the Kirralie Smith cases lawandreligionaustralia.blog/2026/01/25/foo… via @NeilJamesFoster

Great work @Jackie_Meredith !

Another fascinating post on a train tort case, this time on vicarious liability for a porter's actions in removing a passenger from a train. trackingthelaw.com/cases/2026-01-…

@aytchellesse Excellent article Holly, thanks for your clear thought and analysis on this area!

🥳🥳🥳🥳🥳🥳🥳🥳

@AequoEtBono Seems pretty dodgy…

NSW Dist Ct holds that emails are "property" for the purposes of criminal law defence of self-defence to assault "to protect property from unlawful taking, destruction, damage or interference": caselaw.nsw.gov.au/decision/19b2a… #auslaw

@AequoEtBono I see the exclusive term started in Dec 2025 not 2026. But the decision of course is still correct.

Music promoter fails to obtain injunction to prevent Aust concerts (in November 2025) by Nepalese band which agreed to exclusivity with promoter (commencing in December 2026): caselaw.nsw.gov.au/decision/19add… #auslaw