High Court elects to hear Judge Vasta judicial immunity case

In 2021, Judge Vasta was sued for false imprisonment after he jailed a litigant for contempt when no such finding against him had been made. For Judge Vasta and the state of Queensland, it was contended that the doctrine of judicial immunity meant that the claim could not succeed.

Last year, Wigney J of the Federal Court found for the imprisoned man, holding that judicial immunity did not apply for a number of reasons, including that Judge Vasta was an inferior Court judge who had acted beyond jurisdiction. Unsurprisingly, an appeal was subsequently lodged.

Section 40(2) of the Judiciary Act 1903 (Cth) provides that:

“Removal by order of the High Court
(1)  Any cause or part of a cause arising under the Constitution or involving its interpretation that is at any time pending in a federal court other than the High Court or in a court of a State or Territory may, at any stage of the proceedings before final judgment, be removed into the High Court under an order of the High Court, which may, upon application of a party for sufficient cause shown, be made on such terms as the Court thinks fit, and shall be made as of course upon application by or on behalf of the Attorney-General of the Commonwealth, the Attorney-General of a State, the Attorney-General of the Australian Capital Territory or the Attorney-General of the Northern Territory
” (2)  Where:
(a)  a cause is at any time pending in a federal court other than the High Court or in a court of a Territory; or
(b)  there is at any time pending in a court of a State a cause involving the exercise of federal jurisdiction by that court;

“the High Court may, upon application of a party or upon application by or on behalf of the Attorney-General of the Commonwealth, at any stage of the proceedings before final judgment, order that the cause or a part of the cause be removed into the High Court on such terms as the Court thinks fit.
(3)  Subject to the Constitution, jurisdiction to hear and determine a cause or part of a cause removed into the High Court by an order under subsection (2), to the extent that that jurisdiction is not otherwise conferred on the High Court, is conferred on the High Court by this section.
(4)  The High Court shall not make an order under subsection (2) unless:
(a)  all parties consent to the making of the order; or
(b)  the Court is satisfied that it is appropriate to make the order having regard to all the circumstances, including the interests of the parties and the public interest.

“(5)  Where an order for removal is made under subsection (1) or (2), the proceedings in the cause and such documents, if any, relating to the cause as are filed of record in the court in which the cause was pending, or, if part only of a cause is removed, a certified copy of those proceedings and documents, shall be transmitted by the Registrar or other proper officer of that court to the Registry of the High Court.”

All seven High Court judges earlier this month decided that:

“Pursuant to section 40(2) of the Judiciary Act 1903 (Cth), the whole of the cause pending in the Full Court of the Federal Court of Australia being proceeding numbered NSD 1092/2023 be removed into the High Court of Australia on condition that the applicant will not seek costs from the first respondent in this Court and will not seek to disturb the costs order in the first respondent’s favour made by the Federal Court of Australia.
The costs of the removal application be costs in the cause.
Note the agreement of the first respondent and the third respondent that the third respondent:
(a) will not seek costs from the first respondent in this Court and will not seek to disturb the costs order in the first respondent’s favour made by the Federal Court of Australia; and
(b) will pay the first respondent’s reasonable costs of the appeal on a party-party basis.

Note the agreement of the first respondent and the second respondent that the second respondent will not seek costs from the first respondent in this Court and will not seek to disturb the costs order in the first respondent’s favour made by the Federal Court of Australia.
For the purposes of the removed appeal the first respondent be assigned the pseudonym “Mr Stradford” and his former wife be assigned the pseudonym “Mrs Stradford”.
On the ground set out in section 77RF(1)(a) of the Judiciary Act 1903 (Cth), the publication of any information which may tend to reveal the identity of the first respondent or his former wife be prohibited under section 77RE of that Act until further order.”

This High Court decision is a recognition that this case is likely to have proceeded to the High Court, no matter what the Full Bench of the Federal Court would have decided. Also likely relevant to this decision is the fact that the High Court has never actually determined the scope of judicial immunity at common law in Australia. This appeal raises a number of interesting issues and is an opportunity for High Court to clarify the law.

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