Calamity Sal … Another birching for Australia’s worst judge … No immunity for acting outside jurisdiction … A thorough wigging … Paltry damages of $309,450 … ABA looking to beefed-up protections for rotten judges … Time for Vasta to hand in his ticket … Ginger Snatch, an associate of judges, reports
Written in the stars or just his genes? For the benefit of younger readers, Sal’s dad, Angelo, is still the only Australian superior court judge to be removed by a parliament since federation.
Sal’s choleric attitude to litigants has finally come back to bite him, and bite hard, in the shape of a Federal Court decision by Wigney J on August 30 which determined that Vasta was liable, along with police and prison officers (and their employing Commonwealth and Queensland governments), for false imprisonment of a litigant, pseudonymised as Stradford.
The matter had rumbled around the Federal Circuit Court for some time, involving a number of judges, leading to Vasta making an assumption as to the husband defying earlier court orders. Vasta sentenced him to 12 months in chokey.
So much is apparent from Vasta’s recantation on December 12, 2018 in Stradford & Stradford (No 2) [2018] FCCA 3961, where he wrote that he had assumed that a preceding Circuit Court judge had made a finding of contempt, which was an incorrect assumption, and he should have gone through the list of items seriatim to check whether there had been failure and defiance by the husband.
Vasta noted that would have involved the husband having to give evidence and being cross-examined, but he didn’t bother to do that as he was of the view that the husband had already been found in contempt, so proceeded to “sentencing” (the inverted commas being used at [11] of Stradford (No 2)).
Oh dear, don’t tell me that judges ought to provide natural justice before slotting a litigant for contempt.
Stradford spent seven days in police custody and prison before Vasta stayed his hand in Stradford (No 2), pending an appeal.
The Full Court of the then Family Court of Australia (Stradford & Stradford [2019] FamCAFC 25 (February 15, 2019)) later set the judge’s order aside.
The Full Court concluded that to permit the order to stand would be an “affront to justice”.
In appearing before Justice Michael Wigney in the Federal Court, Stradford claimed that Vasta had committed the torts of false imprisonment and collateral abuse of process.
He also claimed that the Commonwealth and the State of Queensland were vicariously liable for his false imprisonment on the basis that their security, police and prison officers, acting on the basis of the judge’s order and a related warrant, caused him to be imprisoned.
The defences by Vasta, the Commonwealth and Queensland squeeze the interesting juice in this matter. In short, how far do immunities stretch for inferior court judges where they are later shown to have acted outside jurisdiction and, in turn, how protected are the enforcement officers acting in good faith but pursuant to warrant, valid on its face, but issued by a judge in excess of his/her jurisdiction?
The defendants claimed that Stradford’s imprisonment was lawfully justified as the judge’s order was valid until set aside, and Vasta was protected from any liability to Stradford by the judicial immunity afforded to him at common law in his capacity as a judge.
Much of the reasoning in the Federal Court goes off on the distinction between inferior and superior courts, fundamental to public law cases such as Craig v SA (1995) 184 CLR 163, and NSW v Kable (2013) 252 CLR 118.
Wigney summarised his 852 para judgment (which summary serves as the basis for these reflections) as follows.
First, the order for Stradford’s imprisonment was infected by a number of serious and fundamental errors on Vasta’s part.
(A) The individual and cumulative effect of those errors was that the order was invalid and of no legal effect from the outset.
It followed that (B) the order and related warrant provided no lawful justification for Stradford’s imprisonment.
The fact that (C) the order was purportedly made in the exercise of the Circuit Court’s power to punish for contempt did not alter the fact that the order, having been made by an inferior court, was invalid and of no effect from the outset.
Second, Judge Vasta was not protected by the immunity afforded to inferior court judges at common law, as that protection may be lost where it is found that the judge acted without or in excess of jurisdiction.
Vasta may have had jurisdiction to hear the matrimonial cause involving the Stradfords, but he acted without or in excess of jurisdiction when he imprisoned the husband, purportedly for contempt arising from his failure to comply with certain disclosure orders.
That was because (A) he imprisoned Stradford without first finding that he had in fact failed to comply with the disclosure orders in question and was therefore in contempt, and (B) without finding any of the facts he was required to find before imprisoning Stradford for any such contempt.
(C) Judge Vasta was also guilty of a gross and obvious irregularity of procedure in that he denied Stradford any modicum of procedural fairness or natural justice.
Third, as for the liability of the Commonwealth and Queensland, the common law remains uncertain on the issue of any immunity that might pass to police and corrective officers acting in good faith on judicial orders, as opposed to court officers such as sheriffs.
Wigney was not satisfied that the Commonwealth and Queensland (in the shoes of their respective officers) were able to avail themselves of any such common law defence in the circumstances of this case.
It is not apparent why Queensland did not run an argument for the protection of its correctional officers, and hence the State, by reference to section 349 of the Corrective Services Act 2006 (Qld), which provides protection from liability for such officers acting honestly and without negligence.
Fourth, Queensland did attempt a statutory defence, section 249 of the Criminal Code, which armed those acting under a warrant “issued by any court” with powers of arrest.
Wigney found that this statutory provision did not extend or apply to protect officers who executed an order or warrant made by a federal court in the exercise of federal jurisdiction, as was the case here.
That was so even though the issuing court may have been physically or geographically sitting in Queensland at the time. “Any court” in the Criminal Code” referred to a State Court.
Fifth, as for damages, the Federal Court assessed an award of damages that was well below that sought by Mr Stradford.
The Court was not satisfied on the evidence that the financial loss suffered by Stradford as a result of his loss of earning capacity was anywhere near the substantial amount claimed. Nor was the Court satisfied that the substantial awards of general, aggravated and exemplary damages ultimately sought were warranted.
In the end result, the Court concluded that Stradford was entitled to an award of damages, assessed under various heads of damage, totalling $309,450.
The judgment sets out the history of Stradford’s incarceration over a week (at [588] ff), a simple tale of harrowing unpleasantness upon being locked up with people that you wouldn’t normally be dining or sleeping with.
Breyer J in the US Supremes had a clear view of this intrusion into civility in Florence’s case at 566 US 343 (2011):
“… a visual inspection of the inmate’s naked body. This should include the inmate opening his mouth and moving his tongue up and down and from side to side, removing any dentures, running his hands through his hair, allowing his ears to be visually examined, lifting his arms to expose his arm pits, lifting his feet to examine the sole, spreading and/or lifting his testicles to expose the area behind them and bending over and/or spreading the cheeks of his buttocks to expose his anus. For females, the procedures are similar except females must in addition, squat to expose the vagina.”
The Full Court at [235] ff consists of Vasta being given a thorough wigging.
Within 24 hours of Wigney J’s judgment, the ABA had hopped into action, Peter Dunning KC, their head boy, announcing:
“The Australian Bar Association (ABA) is concerned about implications for judicial immunity following the decision in Stradford (a pseudonym) v Judge Vasta.”
He wants legislative action to deal with judicial immunity because it:
“… is an important institutional requirement in facilitating the fearless administration of justice by judges across Australia. When occasions arise, such as the present, that in a significant way impact the understanding of its boundaries, it is always appropriate to consider whether the immunity remains appropriately calibrated to securing that fearless independence.”
Further stonewalling judicial immunity for those already near unaccountable doesn’t sound wise. How extraordinary would it be to rush into an extension of existing immunity to cover the egregious facts in Vasta’s performance.
His performance while frolicking in forbidden pastures amounted to the most grotesque bullying, using purported judicial power. Why would anyone legislate to immunise such activities?
It’s not as though Vasta is going to have to cough the $300K. Stradford will of course go after the big government fish to cover his damages.
If the Commonwealth is thinking of appealing this judgment, tax payers might want to think about the apparent $2.5 million paid to Britney Higgins on the basis of no proven facts whatsoever.
That in turn reminds us that there’s too much movement in the shadows in matters that ought to be ventilated in the open air of court rooms or our democratic organs.
The only accountability that can be brought to bear against the likes of Vasta (other than a pasting in the Federal Court) is removal pursuant to section 121 of the Federal Circuit and Family Court of Australia Act 2021:
Salvatore should hand in his ticket or the Commonwealth Parliament should take it from him.
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