Inferior court judges may now be sued for harm caused by wrongful judgments.
A father has been awarded $300,000 in a wrongful imprisonment lawsuit against Judge Salvatore Vasta, a member of the Federal Circuit Court and Family Court of Australia, after he was detained for 7 days during divorce proceedings, setting a new precedent for suing federal judicial officers.
During routine divorce proceedings, the soon-to-be ex-partners must disclose their financial status to one another to distribute their property properly, under Section 79 of the Family Law Act 1975 (Cth), and arrange for any child support payments.
However, this was no routine divorce case. Mr Stradford, the pseudonym the court refers to the husband under, to respect the privacy of the parties in a divorce proceeding, was not believed by Judge Vasta or Mrs Stradford to have adequately complied with the requirement to fully disclose his financial status.
Justice Wigney, the Federal Court judge who found Judge Vasta liable for wrongful imprisonment in Stradford (a pseudonym) v Judge Vasta [2023], pointed to an excerpt from the proceedings as an example of Judge Vasta’s response when Mr Stradford tried to explain himself:
“I will put you in jail for contempt of this court if you talk over the top of me. Do you understand? I am not happy at all with you, but I am happy for you to think about this, because your disclosure at this point has been absolutely abysmal. … If it is that [Mrs Stradford] comes here and she complains that she has asked for things and you have not given them to her, bring your toothbrush.”
The case was adjourned on 10 August 2018 until 26 November 2018. If there was non-compliance, contempt of court proceedings would take place on 6 December 2018.
On 26 November, Judge Turner heard the matter to determine which direction it would take. Her Honour adjourned the case until 6 December, to be heard before Judge Vasta, but did not find that there had not been ‘full and frank disclosure,’ non-compliance, or any contempt.
Wigney J concluded that Mr Stradford had taken all reasonable steps to comply with the orders and “had produced all that he was able to produce.” Importantly, Mrs Stradford, while still unhappy with the level of disclosure, did not seek a contempt order, and just wanted a property settlement.
However, Judge Vasta misinterpreted Judge Turner’s directions. He interpreted Judge Turner’s adjournment until 6 December “for hearing of the contempt application” to mean that Judge Turner found Mr Stradford to be in contempt of court for his non-compliance.
Although he allowed for a short break on 6 December to allow for the two to reach an ‘amicable agreement,’ they could not.
Judge Vasta then told Mr Stradford “I hope you brought your toothbrush.”
He was sentenced to 12 months’ imprisonment for contempt of court. He was to spend 5 months in prison, and the rest was to be suspended as a form of probation, to be reimposed if he breached this.
He was initially arrested by the Commonwealth government, before being handed over to the Queensland government.
Mr Stradford spent 7 days in jail before he was released on bail, pending an appeal.
In 2019, the Full Court of the Family Court swiftly overturned Judge Vasta’s judgment. They found that he acted “in apparent ignorance or disregard” of the law relating to contempt proceedings and punishment; that he had already pre-determined to immediately treat any non-compliance as contempt, as illustrated by the references to ‘toothbrushes,’ an allusion to spending time in prison; and a mistaken and “fundamentally flawed” procedure.
On 30 August 2023, Wigney J found Judge Vasta liable for false imprisonment.
False imprisonment is considered to be an ‘intentional tort,’ meaning that not only was it necessary to prove that the factual elements were met, but there was also an intention to detain the individual, or at least recklessness.
False imprisonment is, first and foremost, about the complete deprivation of liberty. In the words of the Victorian Court of Appeal in McFadzean v CFMEU (2007), “the essence of the action of false imprisonment is the compelling of a person to stay at a particular place against their will.”
The factual elements were clearly made out in this case, and the pre-judgment of Judge Vasta demonstrates the necessary level of intention. The toothbrush statements are just two of the many “thinly veiled threat[s]” that Wigney J pointed to as proof of this, starting with the very first hearing on 10 August 2018.
The major issue here is that judicial immunity is granted to ‘inferior court judges’ like those of the Federal Circuit Court. Historically, this immunity exists to ensure the impartiality and independence of the judiciary. It prevents other parties from pressuring them to act in a certain way, through the fear of a potential lawsuit if the judge rules a certain way.
This comes from our common law system. As Wigney J pointed out, judges from inferior courts are merely expected to apply the law. In contrast, ‘superior court judges,’ such as those of the High Court or a Supreme Court, can change the law, as long as that change isn’t inconsistent with legislation. This distinction between mere application and both application and modification is why superior court judges have more immunity. However, this distinction has often been removed by legislation
Since Federation, only one judge has been permanently removed from judicial office, as many others have preferred to resign instead. That one judge is Judge Vasta’s father, Justice Angelo Vasta, of the Queensland Supreme Court, a superior court, although that was for activities done outside of the courtroom.
Wigney J referred to Premier-turned-Queensland Supreme Court Chief Justice Samuel Griffith, who would go on to be the first High Court Chief Justice, in Raven v Burnett (1894), among other cases, as authority that a judge of an inferior court who makes a mistake about a “matter of law,” such as contempt, and their jurisdiction over it, can be held liable.
In fact, the very question of liability for false imprisonment was raised in the New South Wales Supreme Court in Ward v Murphy (1937), where it was said that “ignorance of the law is no excuse” also applies to judges.
His Honour found four areas in which an inferior court judge lacks immunity: if the judge doesn’t have the jurisdiction to hear the matter, even if they mistakenly believe they do have jurisdiction; where they make an order “without, or outside, or in excess of the jurisdiction” they have; if they are “guilty of some gross and obvious irregularity in procedure,” including natural justice; and if there was “no proper foundation in law” for the sentence.
Judge Vasta was found to lack immunity for the second reason listed. Judge Vasta found Mr Stradford in contempt of court without first determining whether he had complied with the orders, and should reasonably have interpreted Judge Turner’s findings correctly.
Given that Judge Vasta’s actions meant he lacked judicial immunity, as he lacked or exceeded his jurisdiction in making the contempt finding, the decision of White v South Australia (2010), which states that false imprisonment must be done without lawful authority applies.
Wigney J said that any change to the distinction between the immunity of inferior and superior court judges would have to come from the High Court or Parliament. And he appears to be correct, as the Commonwealth government is already investigating establishing a Federal Judicial Committee.
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