by Mary W Maxwell, LLB
I can remember when the commuter ferry from Manhattan to Staten Island cost a nickel. And some Sydneysiders can remember when the Manly Ferry cost only a penny – round trip! There is a famous tort lawsuit involving that penny. (Imagine spending court and legal fees to avenge the loss of $0.01)
It went like this. The fare of one penny was payable on the return journey. So you could board at the Quay and go to Manly for free, but on coming back from Manly you paid the penny as you walked through the turnstile into Sydney city.
One day a fellow walked through the revolving door “on this side” to get to the ferry. But then he realized he had missed the ferry he wanted and didn’t have time to wait for the next one. So he left. I mean he tried to leave. It’s when you are going from the ferry area out to the street that you must go through a turnstile. It which requires the penny to be inserted or it will not turn.
He was angry that he could not “undo” his decision to enter the premises in the first place. He was forced to cough up a cent. I doubt that he was too poor to pay – after all he was planning to pay later that day to return to Sydney. But he made a fuss. “There is no reason for me to have to pay to escape from a sequestered area.”
He got a lawyer and sued for false imprisonment. Claimed he had been held against his will — this is the essential element in this tort. But the judgment was not in his favor. He lost the case.
My first-year teacher at Adelaide Law School, the late David Baker, was disgusted with the judgment. I was disgusted with David Baker. I thought “Oh for Pete’s sake, the ferry company has a right to perform the (rare) locking in of a person who could easily get out by paying one cent.”
But as the years went by, and as I read David Baker’s superb book, Torts, I of course grasped what the law is all about. I’d want to tell that Sydney fellow to take it to the High Court! (Probably the guy was dead by the time I was a student, I think the ferry incident occurred around 1920!)
Child Stealers Alert!
Child stealers can be sued bigtime. They are falsely imprisoning children all over the place. I’ll refer here only to that set of children who want to be elsewhere (such as with Mum) and who have expressed that wish.
What if I were to tell you that a gang of cops and social workers smashed into a home without warning, took a child from a mother who had not in any way been accused of anything, and delivered the child knowingly to a child-sex-abuser. Would you think some rescue action was called for, for the child? We at Gumshoe think so, but we also know that the many persons tasked with doing that rescue simply will not do it.
So, as a thought exercise, let’s ask what is available from the law as such? Prosecution of the various miscreants is “available,” but we the public can’t initiate it and the authorities decline to do so. Note: there is such thing as private prosecution, but lawyers seem unwilling to represent plaintiffs who want to prosecute.
Torts Galore
But there’s good old civil court in which any citizen can file a lawsuit. One can ask for the remedy of damages for an injury. This area of law is known as torts. As discussed above, “malicious prosecution” is a tort. (It can also be a crime but we’re not doing crimes this week at Gumshoe.) Other torts are: being harmed by a bad product, being misdiagnosed by a doctor, having one’s privacy invaded, getting banged up in a car crash, etc. Those injuries could have been done with intention, or by neglect.
Duty of Care
To prove neglect, you first must establish that the negligent party had a duty of care. The doctor has a duty to do right for your health, the other driver has a duty to stay out of your lane on the highway, or whatever.
Regarding the bad things that went into the child grab mentioned above, the duty of care is part and parcel of the job of a cop and a social worker. So a lawyer would probably go for a tort of negligence – neglect of duty. It is the cop’s duty to prevent, rather than engage in kidnap (I can’t believe I’m having to say this!). It’s the social worker’s duty to protect, not harm, a child.
Qualified Immunity, Maybe
If you bring a lawsuit against the cop or social worker their first strategy will be to claim qualified immunity. But it is at the judge’s discretion to grant it. She might decline. If she grants it you can appeal it – make them all nervous. Or you can anticipate that and decide to sue them “in both their official and their individual capacity.”
The key point is that when they do something not in their job description (kidnap, for instance) they are not entitled to qualified immunity. They are acting personally and so are just as liable as your run-of-the-mill private kidnapper.
Brain Power Button Off
The blame lies in all of us for turning off our brain when a uniformed cop acts against us. Same for when a bureaucrat thrusts a signed document at us, telling us that what she is doing is legal. The brain stops functioning. We may never get completely free of that reflex behavior, but if you pause to think about it, you may be able to overcome it.
Repeat after me: a kidnapper is a kidnapper. Kidnapping is a crime. Kidnapping is also a tort, under the rubric of false imprisonment. He/she who kidnaps must pay. The kidnapee must be aided by law to get the hell out of there.
Simple, really.
Remember, law professor David Baker was right. The owner of the Manly Ferry (it was probably the state) had no right to trap the customer behind the turnstile. That, of course was a relatively fate painless fate for the customer. Our little ones who are being kidnapped into the sex trade are trapped in hell.
Slavery
They have owners. Ah! Another crime is slavery. If the “owner” forces the person to work (even with pay, the test is the inability of the person to escape) this is a crime and I suppose it can be a tort.
US Senator Robert Portman ran an inquiry and came up with a report as follows (abridged and with bolding added):
US Senate Report on Protecting Unaccompanied Alien Children from Trafficking and Other Abuses February 23, 2016
Each year, tens of thousands of children enter the US, unaccompanied. Congress has tasked the Department of Health and Human Services (HHS) with the task of placing each with a suitable adult sponsor—someone who can care for them and ensure their appearance at their immigration hearings.
“Over a period of four months in 2014, HHS allegedly placed a number of UACs in the hands of a ring of human traffickers who forced them to work on egg farms in and around Marion, Ohio. According to the indictment, the minor victims were forced to work six or seven days a week, twelve hours per day. The traffickers repeatedly threatened the victims and their families with harm, even death, if they did not work.”
The trafficked children that Gumshoe is working on are enslaved as prostitutes, not as egg farmers.
Case law has developed the meaning of “boundary” in regard to a plaintiff claiming to have been falsely imprisoned. It has to be a bound area, one from which he cannot run. Or, part of the boundary could allow him to run but only through dangerous territory. It is also argued that he is “bound in” by a threat: “You run away and I’ll decapitate your sister” type thing.
Yes, I am mixing two torts (or crimes): enslavement and imprisonment. Senator Portman’s report goes on to say:
“The indictment alleges that the defendants “used a combination of threats, humiliation, deprivation, financial coercion, debt manipulation, and monitoring to create a climate of fear and helplessness that would compel [the victims’] compliance.” [Does that sound familiar?]
“In August 2014, HHS permitted a sponsor to block a child-welfare case worker from visiting with one of the victims, even after the case worker discovered the child was not living at the address on file… HHS allows sponsors to refuse post-release services offered to the child.”
Note: In the US, the Constitution specifically prohibits slavery. The 13th amendment, ratified in 1865, says “Neither slavery nor involuntary servitude… shall exist in the United States.”
Abuse of Process
I am mentioning the tort of abuse of process here for anyone who wants to research it. I am too unfamiliar with it to give a reliable account. Judges sometimes use it, not as a tort but as the excuse for dismissing a case.
The judge might say a person is abusing process by filing a frivolous lawsuit or vexatiously files too many claims. I recall Bill Windsor recommending that the best way to curtail the judge’s too-wide discretion in that matter would be to require a jury’s decision on whether the person is abusing law.
In any case, abuse of process is also a tort, and can be in some cases indistinguishable from the tort of malicious prosecution. By the way, the word “prosecution” there is generic. It is not confined to the actions of a prosecutor. If you start a legal action against me, you are “prosecuting” me – for purposes of that tort, anyway.
A Growth Industry
I believe that the criminality of the courts, in respect to child stealing, is so rife, and it is so hard to get the public to perceive it as crime, that we should look at suing instead of indicting. That could at least get the ball rolling.
Suits by Protective parents – on the basis of malicious prosecution, slavery (of the child) or abuse of process could go far toward pointing out the wrongs that are occurring.
As many parents also get slandered there may be scope also to use the tort of defamation. And since they are constantly told to go for mental health assessments (strictly as harassment, I believe), one might invoke the tort of invasion of privacy.
Long story short, there is more than one way to skin a rat.
Dee, that’s very nice of you to dislpay a photo from your movie about sex-trafficking, The Jammed, but just so’s you’ll know, the prostitute wielding the knife against the cop isn’t exactly suing him.
K?
“I’d want to tell that Sydney fellow to take it to the High Court!” If I recall correctly, the fellow was actually a barrister and he ended up in the Privy Council – failed all the way. Maybe Ned remembers the name of the case.
“Some times you’ve got to know when to hold them, when to fold them…”
Balmain Ferry V Robertson. (1906) 4 CLR 379.
Was a false imprisonment case.
Held by the HC: (paraphrased!!!)
In the circumstances the payment of a penny to escape was reasonable. (after all he missed the Ferry)
The miserable bastard could have escaped imprisonment by swimming off from the wharf at the Quay to Balmain. (:–}
Therefore he was not totally deprived of his liberty because, per his contractual obligations, there was an reasonable alternative to swimming to Balmain. (or from the wharf)
Fee Note in the mail!!
Should have kept your early 60’s Professor: ‘Fleming on Torts”!!!!!!! Or gone to his lectures!!
(:-}
I never took torts in Oz, I just remember some people discussing the case. However, because I came from a different Common Law jurisdiction I did have to take several classes including CONSTITUTIONAL LAW to get my ticket. The rational for taking the class, well, I wouldn’t understand that Australia had both a Federal and State legal system (like, I’m from the U.S. that invented the concept – duh).
I’m proud that I FAILED Australian Constitutional Law THREE TIMES! If you failed a course three times you were cut from law school, but you were allowed a 30 minute discussion with the head of the department before you were shown the door.
Here’s what was happening. I digested all the High Court cases and discerned the faults in the legal logic in all of them. On the exam, I would quickly run through the first third of the exam explaining the main cases on point and how it might be traditionally argued. Then I would explain why each of those cases was decided incorrectly for the middle third of the exam. Then the final third of the exam I would explain how I would run the case.
I ended up in Professor Hoetop’s office for my 30 minute ‘final salute’. We got into a loud argument over the cases, at one point he said, “You quoted all the right cases and then you went on with all this other stuff!” It got fairly heated where he got up and closed the door as students were stopping to see what the Hell was going on. After 45 minutes (I got an extra 15 minutes) I left. – I then called him about an hour later to apologize for loosing my temper. He also apologized for loosing his temper and then said, “I think I see the problem, it’s not that you don’t understand Australian Constitutional Law, it’s that you disagree with it.”
I was a bit taken back, like, what the Hell had we been arguing about for 45 minutes. I said “Of course” – He laughed and said, “That’s not an approach we see often on exams, I’ll see what I can do.”
I didn’t know what that meant until two weeks later when I got a notice in the mail that I had passed Constitutional Law.
And that’s how I became a lawyer in Oz.
Terry,
You should have received advice.
I was called up to the Dean because i failed equity twice.
I ran the discourse. I merely stated that I study to 11 pm, then go with my housemate down to the 33 club at 33 Oford street, take three dollars, last out at the craps table for a couple of hours, drink what I need, have a free serve of chips and steak included and that was the night.
The Dean merely stated; ‘You seem ok to me’ and I got a post in January, passed and survived to a degree.
Professor Shatwell from memory. Dinkum old school lawyer!
I tried to use this tort and many other legal ways to pursue the child safety system to a court of law, to no avail,seems that first hurdle is always blocked by the protectors to child safety.
For the child safety system, not only steals,but they will also fabricate documents, they will do perjury in a court of law,but they also murder and murder also comes in many formats, They murdered my life,pure and simple,placed me in a home made prison in society to have no family and to have no friends and trying to find a relationship with a woman is near on in possible,more so if that woman has children in her life. So now!! I have to and I am ordered to, to not only accept crimes I have never committed as well as the punishment giving to these crimes I have never ever committed, but now I also have to accept I will not have any Love in my life. I do not have one human out there that can say they care for me or have a love to me. Empty.
The Emotional and Mental abuse, from child safety and from society rejections has become Physical,to where doctors cant work out why my body is doing to what it is doing, and none of it is any good.But it stems from the abuse for child safety, The Alienation of life, the murdering of love that I earnt,so I tried for Personal Injury and no, thats not covered to warrant a case.
Does this give me the right ? and the Grounds ? to apply for a Asylum/Refugee status to another country ? due to Persecution and Oppression to Crucifixion ?.
Can I escape a government that is so hell bent to destroy innocent human lives and families ???.
Can I have a life before my life is over ????.
To Terry and Ned, As you know, the Aus. Law Reform Commission came out last week with some recommendations. They are so tepid I can’t even bear to discuss them. But now I ask if you know of any case I could refer to that had a finding that the litigant in Family Law was being persecuted by the court.
If so, please email it to Dee. She is working at the coal face. (Of course I doubt that such a persecution finding exists on the record, but what we see lately cannot be anything other than persecution.)
Friiiiiight-ning.
Hmm. It just occurred to me that such a precedent would be more likely found in Criminal Law. OK, I’ll take anything, anything.
No hope if looking for a case/precedent where a court determined that a litigant was ‘persecuted’ by a court.
Try a softer term, try ‘bias’.
Just duck into duckduckgo and search something like:
‘Bias in court proceedings in Australia’. (Or variances)
Family law court gets plenty of runs.
The persecuted by the Family Court case u look for is a case to the Federal Parliament of Australia and the United Nations re torture. I doubt you will find it. It ran from 1995 to circa 2004 and was one of, or the actual, most expensive litigations in the history of Australia.
In as much as they both correspond to personal welfare, there’s an interesting parallel between Aus gun restrictions and so-called “child protection” .
The justification for both is, of course, that whilst most people are prepared to do the right thing there’s always going to be that psycho few, which is, of course, perfectly true . As is the fact that most government officers haven’t got the will or the means to bring such bods to justice; I mean why would they even bother when they’re assured of being paid the same wage for hunting down hapless Innocents ?
“you could board at the Quay and go to Manly for free, but on coming back from Manly you paid the penny as you walked through the turnstile into Sydney city. “
Correction: pre-payment has always been required for boarding outward bound ferries and the payment in question was for a Balmain ferry
But my main gripe is the on-going failure to acknowledge that a tyranny is a tyranny, irrespective of how its administered
Berry, if Gumshoe were to put up a sign “A Tryanny is a tyranny” what would be left to discuss?
I am not a man of few words.
Seems like you entirely missed the point I was trying to make
Which is interesting as your 18th June article does, in fact appear to touch on it
Pity it doesn’t spell out the fact that cutting off a tyrant’s fuel source needs to be done whilst he’s still playing the benevolent card, whilst the sun is still shining so to speak
‘Cos if you wait until the weather turns………………..
I am tempted to comment on Gumshoe articles on family court and child abuse matters but then I think its best not for me to do so because I might use words that may force Gumshoe to delete my post.
Why would you think that !
We would welcome any “unturned stone”.
You can use ‘words’ to help give veracity to your comment, we have all been round the block as once was said, so don’t blush easily.
1906 — wow. If that guy coulod sue today and get interest, maybe he could but a motorboat and skip the middleman.
Company Law could be used. Slave Traders and Private Prison Facilities are breaking a lot of workplace regulations, form a Union? or Co-Op – STPPF-
Taxes are required of course, loose the ATO pitbull, don’t laugh I think Al Capone famous for his STPPF business and also liked to drink was only taken down because of unpaid taxes.
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