A federal judicial officer has been held liable in tort for the false imprisonment of a father in matrimonial proceedings.
In issue
- In issue was the extent of judicial immunity afforded to inferior court judges (as distinct from their superior court counterparts in the judicial hierarchy) in the face of civil litigation for their errors.
- This case also considered the vicarious liability of the State and Commonwealth for the conduct of their employees in performing functions giving effect to unlawful orders.
The background
On 10 August 2018, the first respondent, Judge Salvatore Vasta, made orders concerning disclosure in a matrimonial proceeding (the August Orders). The applicant, Mr Stradford (a pseudonym) was ordered to ‘make full and frank disclosure’ of categories of financial documents that his former wife alleged had not been disclosed to date.
When the matter came before Judge Turner for directions on 26 November 2018, the wife contended that certain categories of documents had not been produced. The applicant contended that he had disclosed all he was physically capable of producing.
Without making any findings of contempt against the applicant, Judge Turner adjourned the proceeding to 6 December 2018 ‘for the hearing of the contempt application’ that was provided for in the first respondent’s August Orders.
The contempt decision
On 6 December 2018 the first respondent delivered an ex tempore judgment which found the applicant in contempt of the orders made on 10 August 2018 (Stradford & Stradford [2018] FCCA 3890). The applicant was sentenced to 12 months’ immediate imprisonment, with a release date of 6 May 2019 and the balance suspended for 2 years.
The applicant was subsequently detained in a holding cell at the Court for and on behalf of the second respondent, the Commonwealth of Australia. He was later transferred to the Roma Street Watchhouse by the Queensland Police Service, where he was imprisoned between 6 December 2018 and 10 December 2018. He was then transferred to the Brisbane Correctional Centre on 10 December 2018.
The stay application
On 12 December 2018, the matter was listed again before the first respondent by oral application for a stay of the orders made on 6 December 2018. The applicant’s counsel alleged that the first respondent had made an error in concluding that Judge Turner had found the applicant in contempt.
During the application for a stay of the imprisonment orders, the first respondent effectively conceded he had erred in finding the applicant was in contempt and in sentencing him to imprisonment. The first respondent ordered the immediate release of the applicant pending an appeal of the contempt decision.
The contempt decision on appeal
On 15 February 2019, the Full Court of the Family Court of Australia unanimously allowed the applicant’s appeal from the August Orders. In making those orders, the Court of Appeal said that the first respondent’s declaration of contempt and subsequent imprisonment of the applicant ‘constituted a gross miscarriage of justice’.
The issues at trial
In subsequent Federal Court proceedings, the applicant alleged that the first respondent had committed the torts of false imprisonment and collateral abuse of process and that, as a result, he had suffered a psychiatric injury which had impacted his future earning capacity. The applicant further contended that the second respondent (the Commonwealth), and the third respondent (the State of Queensland), were vicariously liable for the false imprisonment.
The respondents claimed that the applicant’s imprisonment was lawfully justified because the first respondent’s order was valid until set aside. Further, the first respondent contended that he was protected from any liability to the applicant by the judicial immunity afforded to him at common law in his capacity as a judge, and the second and third respondents claimed that the actions of their officers in imprisoning the applicant were justified because they were acting on the basis of a judicial order or warrant which appeared valid on its face.
The decision at trial
The Federal Court found that that the applicant made out his case of false imprisonment against each of the respondents, and ordered:
- the respondents pay damages for the applicant’s personal injury and loss of earning capacity;
- the respondents pay damages for the applicant’s false imprisonment and deprivation of liberty; and
- the first respondent pay exemplary damages.
The Court found that the order which resulted in the applicant’s imprisonment was infected by a number of serious and fundamental errors on the part of the judge, the effect of which was that the order was invalid and of no legal effect from the outset.
As to the judicial immunity of judges in courts that are ‘inferior’ (lower in the judicial hierarchy), the Court confirmed the immunity can be lost if they act without or in excess of jurisdiction (whether knowingly or otherwise). In this case, the first respondent was found to have acted without or in excess of jurisdiction when he imprisoned the applicant without first finding that the applicant had in fact failed to comply with the disclosure orders in question (and was therefore in contempt), nor any of the facts he was required to find before imprisoning the applicant for any such contempt. The Court considered the first respondent was ‘guilty of a gross and obvious irregularity of procedure and denied the applicant any modicum of procedural fairness or natural justice.’
The Court found there was no common law or statutory defence available to the second and third respondents’ employees. The employees were liable for the tort of false imprisonment and the second and third respondents were vicariously liable for that conduct.
In making the exemplary damages finding against the first respondent, the Court found that he had displayed ‘an almost contemptuous disregard for the rule of law, which of course involves due process and procedural fairness.’
Implications
The circumstances of this case, involving the personal liability of a sitting judge, are rare and unique, and the decision has raised considerable discussion amongst the legal profession. It is not known whether the decision is to be appealed. It has, however, given further momentum to calls for the establishment of a federal judicial commission to investigate and manage complaints against judicial officers.
Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 (30 August 2023)
