FEDERAL COURT OF AUSTRALIA

Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020

SUMMARY

In accordance with the practice of the Federal Court in cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet on the Court’s website. This summary is also available there.

In December 2018, a judge of the then Federal Circuit Court of Australia, who was hearing a matrimonial cause involving the applicant in this matter, ordered that the applicant be imprisoned for twelve months, purportedly for contempt of court. The applicant spent seven days in police custody and prison before the order which had resulted in his imprisonment was stayed pending an appeal. The Full Court of the then Family Court of Australia subsequently set the judge’s order aside on the basis that the judge had erred in several fundamental respects. The Full Court concluded that to permit the order to stand would be an “affront to justice”.

In this proceeding, the applicant claimed that, by ordering him to be imprisoned in the way he did, the judge 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 applicant sought compensation from the judge, the Commonwealth and Queensland for the loss and damage he suffered as a result of his imprisonment.

The judge, the Commonwealth and Queensland each defended the applicant’s claim on a number of bases. They each claimed that the applicant’s imprisonment was lawfully justified because the judge’s order was valid until set aside. The judge also claimed 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. For their part, the Commonwealth and Queensland claimed that their officers had available to them a common law defence, the effect of which was that their actions 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. Queensland also relied on a statutory defence.

The case brought by the applicant raised a number of complex issues of fact and law.

First, the question whether the judge’s order was valid until set aside raised issues concerning the source and nature of the Circuit Court’s power to punish for contempt and the legal nature and enforceability of orders made in the exercise of that power.

Second, the question whether the judge was protected by judicial immunity raised complex issues concerning the nature and scope of the immunity afforded at common law to judges of inferior courts such as the Circuit Court. It should be noted that the expression “inferior court” is not a statement of derision, but a legal expression which distinguishes such courts from courts which are higher in the judicial hierarchy.

Unfortunately, the common law concerning the scope of the immunity afforded to inferior court judges was not entirely settled or satisfactory. To resolve the question whether the judge’s conduct in this case fell within the scope of that immunity it was necessary to closely consider a long line of cases stretching back hundreds of years to a time when in England it was said that superior court judges on occasion had to correct inferior court judges with “strokes of the rodde, or spur”. Needless to say, that rationale for the distinction between inferior and superior court judges in this context is no longer considered applicable, though issues remain concerning the precise circumstances in which an inferior court judge may lose the protection of judicial immunity. It should also be noted in this context that, unlike most inferior court judges in the states and territories of Australia, Circuit Court judges were not afforded any statutory immunity which equated their position to that of a superior court judge.

Third, the defence advanced by the Commonwealth and Queensland similarly raised difficult issues concerning whether there was, at common law, a justification defence available to police and prison officers who executed orders and warrants issued by inferior court judges which, while regular on their face, turned out to be invalid and of no legal effect. The common law in that regard was again far from settled or satisfactory. To resolve those issues it was again necessary to closely consider almost four centuries of case law, not all of it pellucid.

The uncertainties in the common law in that regard largely ceased to be a problem in England over two hundred years ago because police and prison officers were afforded statutory protection from liability when they executed invalid inferior court orders and warrants. Similar statutory protections have applied at various times in some Australian states and territories. There is no Commonwealth statute which provides any protection to state or territory police and prison officers who execute warrants issued by a federal court such as the Circuit Court.

Queensland contended that one of its statutes operated to protect the Queensland police and prison officers who imprisoned the applicant in this case. The question whether that was so raised difficult questions of construction, in particular whether the provision in question could apply to warrants issued by a federal court simply because it happened to be physically sitting in Queensland at the time the order and warrant in question were issued.

Fourth, in the event that the applicant succeeded in establishing that the judge, the Commonwealth and Queensland were liable, the applicant’s case in respect of damages also raised complex questions. In particular, the applicant claimed damages running into the millions of dollars for financial loss allegedly suffered by him as a result of a loss of earning capacity. The loss of earning capacity was said to be the result of a post-traumatic stress disorder which resulted from his prison experience. As the evidence at trial unfolded, however, real issues arose as to the extent of any financial loss arising from any loss of earning capacity suffered by the applicant. There were also medical issues concerning the applicant’s prognosis and the extent of the impairment which resulted from his psychological injury.

For the reasons set out in considerable detail in the Court’s reasons for judgment, the liability issues have mostly been resolved in the applicant’s favour. While the Court found that the applicant had not made out his case of collateral abuse of process against the judge, the Court found that the applicant had made out his case of false imprisonment against each of the judge, the Commonwealth and Queensland. The Court’s reasons for so concluding may be shortly summarised as follows.

First, 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 individual and cumulative effect of those errors was that the order was invalid and of no legal effect from the outset. The order and related warrant therefore provided no lawful justification for the applicant’s imprisonment. The fact that 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, the judge was not protected by the immunity afforded to inferior court judges at common law. The protection afforded to inferior court judges at common law may be lost where it is found that the judge acted without or in excess of jurisdiction. In this case, while the judge may have had jurisdiction to hear the matrimonial cause involving the applicant, the judge acted without or in excess of jurisdiction when he imprisoned the applicant, purportedly for contempt arising from his failure to comply with certain disclosure orders. That was because, in summary, 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, and without finding any of the facts he was required to find before imprisoning the applicant for any such contempt. As explained in detail in the reasons for judgment, the judge was also guilty of a gross and obvious irregularity of procedure and denied the applicant any modicum of procedural fairness or natural justice. The denial of procedural fairness was anything but narrow or technical. It was fundamental.

Third, as for the liability of the Commonwealth and Queensland, while the common law remains somewhat uncertain, ultimately the Court was not satisfied that the defence upon which the Commonwealth and Queensland relied was sufficiently recognised or accepted in the relevant authorities, or that the Commonwealth and Queensland were able to avail themselves of any such common law defence in the circumstances of this case. While at common law it is accepted that some court officers, such as sheriffs, may be able to justify their otherwise tortious actions arising from the execution of an order or warrant on the basis that they are subject to a duty of obedience to the court which made the order or warrant, that defence does not apply to police and prison officers who are not officers of the court.

Fourth, as for Queensland’s purported statutory defence, the statutory provision relied on by Queensland, properly construed, does not extend or apply to protect officers who execute an order or warrant made by a federal court in the exercise of federal jurisdiction, as was the case here. That is so even though the court may have been physically or geographically sitting in Queensland at the time.

Finally, as for damages, while that Court has assessed that a not insubstantial award of damages should be made in the applicant’s favour, that award is well below the award sought by the applicant. The Court was not satisfied on the evidence that the financial loss suffered by the applicant as a result of his loss of earning capacity was anywhere near the substantial amount claimed by the applicant. Nor was the Court satisfied that the substantial awards of general, aggravated and exemplary damages ultimately sought by the applicant were warranted.

In the end result, the Court has concluded that the applicant is entitled to an award of damages, assessed under various heads of damage, totalling $309,450.

JUSTICE MICHAEL WIGNEY

30 August 2023

Sydney