“Can I sue the judge?” is the question some lawyers might be asked by a fuming client, and which can be categorised as legal locker room talk. Such an idea is almost always keenly hosed down by the lawyer in response, as the client’s only recourse is to appeal, no matter how wrong the judge is or might have been.
There are obvious reasons why normally it is impossible to sue a Judge. To start with, almost no-one would want to be a Judge if being personally liable for their mistakes was a real possibility. Second, Judges must be able to make decisions “without fear of favour”. The very last thing we would want to see is Judges deciding cases in favour of those who are most likely to sue if they are unsuccessful or disappointed. Such a predicament would put a Judge in a conflict of interest situation, where they would be put in a position similar to being a judge of their own cause. Because a Judge’s independence and impartiality are crucial, a judge’s self interest can play no part in a fair system.
The recent case of Judge Salvatore Vasta is a very rare exception to the rule known as judicial immunity that says that judges cannot be sued for their conduct in office.
In 2021, Judge Vasta was sued for $2M for false imprisonment of a party that appeared before him.
Vasta J’s imprisonment order
The proceedings arose from what happened on 6 December 2018, namely when Judge Vasta made the following declaration and order:
1. That the Applicant [MR STRADFORD] be sentenced to a period of imprisonment in the [X Correctional Centre] for a period of twelve (12) months, to be served immediately with the Applicant to be released from prison on … 2019, with the balance of the sentence to be suspended for a period of two (2) years from today’s date.
In the reasons for judgment delivered extemporaneously, Vasta J wrote that:
“The matter went before Her Honour Judge Turner on 26 November 2018. Her Honour ordered that the matter be adjourned for hearing of a contempt application. What Her Honour found was that there had been compliance with order 3(b), (c), (d), (e), (f), (g) and (i) of my order, but there had not been compliance with orders (a), (h), (j), (k), (l), (m), (n) and (o) of my orders. For that reason, Her Honour found that the Applicant husband was in contempt of my orders and sent it to me to deal with as I had foreshadowed in my orders.”
In fact, Judge Turner had made no such determination.
By operation of Order 1, the husband was deprived of his liberty and imprisoned.
The imprisonment ended after an appeal was lodged and Vasta J agreed to a stay of his own Order only six days later. Belatedly realising his own errors, Vasta J to his credit conceded that:
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I did not feel the need to explore any other aspect further because I had, in effect, proceeded upon the basis that Her Honour had already made a finding of contempt.
It seems, on the material, that this could well have been an incorrect assumption. If that was an incorrect assumption, then it is an error by me not to have actually gone through with each and every item on that list and made a ruling as to whether the Applicant father was in contempt of my orders.
To do that I would have had to have the Applicant sworn to give evidence and cross-examined upon the material. I could have then used that actual sworn evidence to decide whether the contempt had actually occurred. But I proceeded straight to a “sentencing” proceeding because I was of the view that the issue of whether the Applicant husband was in contempt had already been decided.
It seems to me if that is also the conclusion that is reached by a Court of Appeal (and I think that it would be), then that Court would really have no hesitation in allowing the appeal and remitting the matter back to me.
I have looked at the declaration that I made on 6 December 2018 and, after discussion with counsel, have come to the conclusion that I am functus officio with regard to that declaration. I do not have the power to stay that declaration, even though I am of the view that it should be stayed.
However, I can stay the orders that I had made, especially the one that the Applicant be sentenced to a period of imprisonment of 12 months, but to be released after serving five months. It seems to me that the basis upon which I made that order is almost certainly incorrect. Therefore, it would be totally unjust not to grant the relief that has been sought by the Applicant husband today.
So, I will allow the oral application for a stay of order 1 sentencing the Applicant to imprisonment. That order is stayed pending the outcome of the appeal of that order and declaration.
The appeal
On 15 February 2019, the Full Court Family Court of Australia allowed the appeal and set aside Order 1 of 6 December 2018. Their Honours Strickland, Murphy & Kent JJ made the following observations:
“We are driven to conclude that the processes employed by the primary judge were so devoid of procedural fairness to the husband, and the reasons for judgment so lacking in engagement with the issues of fact and law to be applied, that to permit the declaration and order for imprisonment to stand would be an affront to justice …
It can thus be seen that the primary judge’s process failed from the outset on a number of levels. In advance of any breach of orders the primary judge pre-determined that any such breach, of whatsoever nature, would constitute “contempt” within the meaning of the Act. Moreover, the primary judge cast himself as prosecutor in any future proceeding for the offence of contempt. Both of these conclusions were reached by the primary judge without particularising any charge; establishing that the charges as particularised were prima facie established; and affording the husband any opportunity to be heard…
It can be seen that without providing any particulars whatsoever as to the alleged contempt, the husband has purportedly been found guilty. The husband has had no opportunity whatsoever to be heard about that. Indeed, he could not be because he did not know what charge he was facing. Neither, thereafter, was the husband afforded the opportunity to be heard about any sanction. The primary judge announced to the husband that he will be “serving 12 months in jail” if, as the primary judge postulates, his Honour deals with “contempt today”.
It is difficult to envisage a more profound or disturbing example of pre-judgment and denial of procedural fairness to a party on any prospective orders, much less contempt, and much less contempt where a sentence of imprisonment was, apparently, pre-determined as the appropriate remedy.”
The man now known as Mr Stradford (a pseudonym) then sued Vasta J personally as well as the state of Queensland. Vasta J, conceding he had erred in imprisoning Mr Stradford, sought to rely on the defence of judicial immunity.
Statutory provisions
Part XIIIB of the Family Law Act, which consists of s 112AP, deals specifically with contempt of court. Section 112AP(1) provides that the section applies to a contempt of court that either “does not constitute a contravention of an order under this Act” or “constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court”.
Section 17 of the Federal Circuit Court of Australia Act provided that:
“17 Contempt of court
(1) The Federal Circuit Court of Australia has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.
(2) Subsection (1) has effect subject to any other Act.
(3) The jurisdiction of the Federal Circuit Court of Australia to punish a contempt of the Federal Circuit Court of Australia committed in the face or hearing of the Federal Circuit Court of Australia may be exercised by the Federal Circuit Court of Australia as constituted at the time of the contempt.
Section 35 of The Family Law Act provided that:
35 Contempt of court
Subject to this and any other Act, the Family Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.
Case law
Lord Denning MR in Sirros v Moore [1975] 1 QB 118 at 132 expressed the doctrine of judicial immunity as follows:
“Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus, or a writ of error or certiorari, or take some such step to reverse his ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages.
The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear.”
Latham CJ in Cameron v Cole (1944) 68 CLR 571 at 585; [1944] HCA 5 said that:
“An inferior court such as a county court may be made a superior court for a particular purpose. Thus where a court is described in a statute as a branch of a principal court and is also given the jurisdiction of the Court of Chancery for purposes of bankruptcy jurisdiction, it may, though a county court (and therefore an inferior court) in its ordinary jurisdiction, be a superior court in relation to bankruptcy proceedings.”
Aickin J in an unreported decision, Durack v Gassior (High Court of Australia, 13 April 1981) said:
“…No action may be brought under our legal system against judges for acts done in the course of hearing or deciding cases which come before them.”
In Moll v Butler (1985) 4 NSWLR 231; (1985) 10 Fam LR 544, a case concerned the contempt powers under the Family Law Act before substantial amendments to the Family Law Act in 1989, President Kirby expressed the principle of judicial immunity in the following terms (at 534-535):
Although it has not been the subject of a binding holding of the High Court of Australia, a number of cases in that Court make it plain that the principle [of judicial immunity] is accepted in this country to be as full and ample as it has been stated to be in England: see, eg, Gibbons v Duffell [1932] HCA 26; (1932) 47 CLR 520 at 524 and Cabassi. Indeed, it is a principle which appears to be fundamental to all the jurisdictions of the common law. As has been demonstrated, it is clearly accepted and repeatedly applied in England. It has been applied in New Zealand: see Nakhla. It is settled law in Canada: see, eg, Clendenning and Board of Police Commissioners for City of Belleville (1976) 75 DLR 3d 33; Morier v Rivard (1985) 23 DLR (4th) 1. It is also clearly established by many cases in the United States of America both in Federal and State courts: see Corpus Juris Secundum, vol 48A, par 86. It is perhaps most clearly stated in that country in the words of Warren CJ in Pierson v Ray [1967] USSC 92; 386 US 547 at 553-554 (1967):
“…Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v Fisher, [1871] USSC 15; 13 Wall 335 (1872). This immunity applies even when the judge is accused of acting maliciously and corruptly, and it is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences. (Scott v Stansfield LR 3 Ex 220, 223 (1868), quoted in Bradley v Fisher at 350). It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.”
Attempts to modify, qualify or limit the scope of the immunity so conferred are made against the background of the enduring and universal features of the principle so established. Although exceptions have been provided, immunity has been consistently upheld, save in the most exceptional cases where a judicial officer acts knowingly in the clear absence of all jurisdiction: see, eg, Stump v Sparkman. As pointed out by Woodhouse J in Nakhla “jurisdiction” in this context means the judicial power to hear and determine a matter. It does not mean the manner, method or correctness of the exercise of that power. It is a word, in the context, to be construed broadly in order to ensure that the issue of judicial immunity does not come to depend upon the determination of fine questions of jurisdiction: cf Williams v Sepe [1973] USCA5 1809; 487 F 2d 913 (1973); Jacobson v Schaefer [1971] USCA7 169; 441 F 2d 127 (1971) and Rankin v Howard [1980] USCA9 1527; 633 F 2d 844 (1980); cert den 451 US 939.”
The opening
The written reasons for judgment of Justice Michael Wigney from the outset made it fairly apparent what the result would be:
“The applicant in this proceeding was the victim of a gross miscarriage of justice. He was detained and imprisoned for contempt following what could fairly be described as little more than a parody of a court hearing. He spent seven days in prison before being released. The order that resulted in his incarceration was subsequently set aside. The central issue in this proceeding is whether he is entitled to a remedy to compensate him for the injury and loss suffered by him as a consequence of that lamentable incident…
e spent five miserable days in a police watch house in Brisbane before being transported to a correctional facility operated by the third respondent, the State of Queensland. He spent another two difficult days in that facility before he was released on bail pending an appeal.
There could be no real dispute that the Judge made a number of fundamental and egregious errors in the purported exercise of his power to punish Mr Stradford for contempt. He sentenced Mr Stradford to imprisonment for contempt without first finding that Mr Stradford had in fact failed to comply with the orders in question. He erroneously believed that another judge had made that finding, though exactly how he could sensibly have arrived at that position in the circumstances somewhat beggars belief. He also failed to follow any of the procedures that he was required to follow when dealing with contempt allegations and otherwise failed to afford Mr Stradford any procedural fairness. He effectively pre-judged the outcome. Imprisonment was a fait accompli.”
Scope of judicial immunity
“The principles that, in my view, emerge from the authorities concerning the scope and boundaries of the judicial immunity enjoyed by inferior court judges may be summarised as follows.
First, an inferior court judge may be held liable, and will not be protected by judicial immunity, where the judge makes an order in a proceeding or cause in which the judge did not have “subject-matter” jurisdiction; that is, no jurisdiction to hear or entertain in the first place. It does not matter whether the judge knew, or did not know, that he or she did not have jurisdiction to hear or entertain the proceeding. It also does not matter whether the judge believed or assumed that he or she had jurisdiction in the proceeding as a result of a mistake of fact or a mistake of law. The only exception is where the judge had no knowledge, or means of ascertaining, the fact or facts that relevantly deprived him or her of jurisdiction to hear or entertain the proceeding. The cases which support this principle include: Marshalsea; Calder v Halket; Houlden v Smith; Raven v Burnett; and Wood v Fetherston.
Second, in certain exceptional circumstances, an inferior court judge may be held liable, and will not be protected by judicial immunity, where the judge, despite having subject-matter jurisdiction in the proceeding, nevertherless makes an order without, or outside, or in excess of the jurisdiction he or she had to hear or entertain the proceeding.
Third, one of the exceptional circumstances in which an inferior court judge may lose the protection of judicial immunity and be held liable is where, despite having jurisdiction to hear or entertain the proceeding, the judge is guilty of some gross and obvious irregularity in procedure, or a breach of the rules of natural justice, other than an irregularity or breach which could be said to be a merely narrow technical. The cases which support this principle include: In re McC at 1 AC 546H-547B and R v Manchester City Magistrates’ Court at 1 WLR 671E-F.
Fourth, another exceptional circumstance in which an inferior court judge may be held liable is where, despite having jurisdiction to hear or entertain the proceeding, the judge acts in excess of jurisdiction by making an order, or imposing a sentence, for which there was no proper foundation in law, because a condition precedent for making that order or sentence had not been made out. The cases which support this principle include: In re McC at 1 AC 549C-D and 558; Groome v Forrester; M’Creadie v Thomson; O’Connor v Issacs; and R v Manchester City Magistrates’ Court.
I do not suggest that the latter two principles exhaustively define or catalogue the circumstances in which an inferior court judge, despite having subject-matter jurisdiction, may nevertheless lose the protection of judicial immunity by making an order which was without, outside, or in excess of, that jurisdiction. For reasons that will become apparent, it is unnecessary for me to go further than identifying what appear from the authorities to be the established circumstances where an inferior court judge will not be able to rely on judicial immunity to protect them from suit.”
“I am not persuaded that the Judge was acting as a superior court judge when he imprisoned Mr Stradford, or that he was entitled to the immunity afforded a superior court judge.”
Why Vasta did not have immunity
Justice Wigney found against Vasta on the following grounds:
“Having regard to the principles applicable to the judicial immunity of an inferior court judge that I have outlined, I consider that the Judge is liable for any loss or damage suffered by Mr Stradford arising out of his unlawful imprisonment. As an inferior court judge, the Judge was not protected from liability arising from his imprisonment of Mr Stradford. That is so for a number of reasons.
First, while the Judge obviously had jurisdiction to hear and entertain the proceeding between Mr and Mrs Stradford, being a proceeding pursuant to the Family Law Act, it is clear that when he imprisoned Mr Stradford, purportedly for contempt, he acted without or in excess of jurisdiction. That is because, as discussed earlier in these reasons, he imposed that sanction without first finding that Mr Stradford had in fact failed to comply with the relevant orders and was in fact in contempt.
It may be accepted, for present purposes, that when the Judge ordered that Mr Stradford be imprisoned for contempt, his Honour did so on the basis of a mistaken belief or assumption that Judge Turner had already found that Mr Stradford had failed to comply with the disclosure orders and was therefore in contempt. The problem for the Judge, however, is that his Honour plainly had the means to ascertain whether Judge Turner had in fact made any such findings. The Judge plainly should have been aware that her Honour had made no such findings. Judge Turner had made no order or declaration to that effect and had delivered no judgment. The Judge could readily have ascertained that Judge Turner had not found that Mr Stradford had failed to comply with the disclosure orders and had certainly not made any finding that Mr Stradford was in contempt. There is no evidence to suggest that the Judge made any attempt to speak with Judge Turner or consult the court records which, no doubt, would have revealed that no such finding had been made.
In this respect, the circumstances of this case are entirely analogous to the circumstances in Wood v Fetherston; O’Connor v Issacs; In re McC and R v Manchester City Magistrates’ Court in particular. A finding of contempt was a condition precedent to the imposition of the sanction imposed by the Judge. There was no proper foundation in law for the making of the imprisonment order. In imposing a sentence of imprisonment in the absence of any such finding, the Judge acted without or in excess of jurisdiction in the requisite sense.
Second, for the reasons given earlier, as the alleged contempt by Mr Stradford was a failure to comply with orders made in the exercise of jurisdiction under the Family Law Act, the Judge was required, before imprisoning Mr Stradford, to satisfy himself of certain matters under either Pt XIIIA or Pt XIIIB of the Family Law Act.
If the matter were to proceed under Pt XIIIB, the Judge had to be satisfied not only that there had been a contravention of the disclosure orders, but also that the contravention involved a “flagrant challenge to the authority of the court”. The Judge made no such finding.
If the matter were to proceed under Pt XIIIA, the Judge had to be satisfied not only that Mr Stradford had contravened the disclosure orders, but also that he did so without reasonable excuse and that, in all the circumstances of the case, it would not be appropriate to impose one of the other sanctions provided in ss 112AD(2)(a), (b) or (c). The Judge did not satisfy himself of any of those matters.
The making of the required findings under either Pt XIIIA or Pt XIIIB were, in effect, conditions precedent to the Judge imposing a sentence of imprisonment. In imposing a sentence of imprisonment in the absence making any of those findings, his Honour acted without or in excess of jurisdiction in the requisite sense. There was no proper foundation in law for the making of the imprisonment order. In that regard, the circumstances of this case are again analogous to the circumstances in Wood v Fetherston, O’Connor v Issacs, In re McC, and R v Manchester City Magistrates’ Court.Third, in conducting the contempt proceedings against Mr Stradford in the way he did, the Judge was guilty of a “gross and obvious irregularity of procedure”: cf In re McC at 1 AC 546H. The statutory procedure for contempt, other than contempt in the face of the court, was prescribed in r 19.02 of the FCC Rules. The procedure followed by the Judge did not comply with any of the requirements of r 19.02. There was no application in the approved form and no supporting affidavit. The Judge did not clearly advise Mr Stradford of the contempt allegation, or ask him to state if he admitted or denied that allegation. Nor did his Honour hear any evidence in support of the allegation, or determine if there was a prima facie case, or invite Mr Stradford to state his defence and, after hearing that defence, determine the charge. For the reasons given earlier, it was not open to the Judge to dispense with the procedure in r 19.02. Nor did he do so. The available inference is that he either ignored it, or proceeded in complete ignorance of it.
The Judge’s complete failure to comply with the procedure in r 19.02 of the FCC Rules could not possibly be seen as a “narrow technical ground”: cf In re McC at 1 AC 547A.
The gross and obvious irregularity of procedure that infected the Judge’s purported exercise of his contempt powers meant that he acted without or in excess of his jurisdiction in the requisite sense.
Fourth, the Judge was guilty of a gross denial of procedural fairness and breach of the rules of natural justice having regard not only to his complete failure to comply with the procedure in r 19.02 of the FCC Rules, which was clearly designed to ensure procedural fairness, but also more generally. As the FamCA Full Court found in Stradford, the Judge pre-judged that the alleged contravention of the order would constitute a contempt within the meaning of the Family Law Act (at [20]); pre-judged the penalty for the contravention without first knowing the particulars of the alleged contravention (at [21]); performed the roles of prosecutor, witness and judge (at [22]-[27]); and made findings concerning the alleged contravention without any evidentiary foundation (at [57]).”
Wigney J concluded that for these four reasons Vasta J was not protected by judicial immunity and was personally liable. Wigney J further held that the officers of Queensland Police and officers of Queensland Corrective Services who were involved in Mr Stradford’s detention and imprisonment imprisoned Mr Stradford without lawful justification and also committed the tort of false imprisonment. Wigney J found that Queensland was vicariously liable for the tort committed by the relevant officers of Queensland Police and Queensland Corrective Services.
On quantum, Wigney J accepted Mr Stradford’s evidence of what occurred to him during the false imprisonment and the impacts that had on him, but found him to be an evasive witness and lacking in credibility when he gave evidence of his alleged financial losses.
Vasta was the only defendant ordered to pay $50,000 of the total sum in exemplary damages for false imprisonment and deprivation of liberty.
Contempt of Court is not a finding which should be made lightly, and requires strict proof to the criminal standard. In this case, the issue was financial disclosure and Vasta’s heavy-handed approach was akin to using a sledgehammer to crack a nut. Furthermore, he proceeded on an erroneous assumption.
This case is a very rare example of a judicial officer being held personally liable for their conduct in Court. In this case, the combination of the Federal Circuit Court of Australia having been an inferior Court lacking an inherent jurisdiction, Vasta J acting without jurisdiction and the failures to follow due process led to Vasta J losing the benefit of judicial immunity.
It is difficult to predict the consequences of this case. One consequence from the publicity of this decision could be that there is a lot more “locker room talk” about suing judges and any future attempts to sue judges personally will seek to draw similarities with this case.
Author adminPosted on Categories Judiciary, Liberty
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