Top judge leads push on judicial immunity

Federal judges are up in arms over one of their number being ordered to pay damages to a man he wrongly jailed.

Judge Salvatore Vasta of the Federal Circuit and Family Court was ordered to pay $50,000 of a $309,000 damages award to an imprisoned father-of-two in August.

The head of Queensland’s District Court has demanded clarification from the state government of a bombshell finding that a federal judge in Brisbane was personally liable for wrongly sending a man to jail.

Chief Judge Brian Devereaux wrote to state Attorney-General Yvette D’Ath after judge Salvatore Vasta of the Federal Circuit and Family Court was ordered to pay $50,000 of a $309,000 damages award to the imprisoned father-of-two in August.

Chief Judge Brian Devereaux SC.

The case has thrown into question whether the legal immunity covering judges of the Federal Court, Supreme Court and High Court extends to those in intermediate-level jurisdictions.

Judge Devereaux is understood to have sought an assurance from Ms D’Ath that this protection applied to District Court judges, as was assumed prior to the Vasta decision.

The Attorney-General declined to comment, citing moves last week to appeal against the finding, including by Judge Vasta.

“I’m advised several notices to appeal have been filed,” Ms D’Ath said. “It wouldn’t be appropriate to comment any further until those matters are decided.”

In the Federal Court last month, judge Michael Wigney ruled that Judge Vasta had displayed an “almost contemptuous disregard for the rule of law” when he jailed the man in 2018 for contempt of court during a family law proceeding.

Judge Vasta had attempted to rely on the doctrine of judicial immunity, holding that judges cannot ordinarily be sued for their decisions in court, after the man identified by the pseudonym of Mr Stradford, went after him, the state of Queensland and the commonwealth for damages over his wrongful imprisonment. He had spent five “miserable” days in a police watch-house cell and two further days in a Brisbane jail during which he said he was bashed, became suicidal and woke to a cellmate attempting to strangle him. He was freed after the order jailing him for a maximum of 12 months was quashed.

In finding against Judge Vasta, Justice Wigney on August 30 said it was “highly unusual” for a judge to be held liable for false imprisonment. But after combing through hundreds of years of case law to pinpoint the scope of judicial immunity available to lower-court judges, he found Judge Vasta was not protected because he had acted in excess of his powers.

Australian Judicial Officers Association chief executive Karen Sloan, representing the nation’s judges, warned that the decision had “potentially profound implications for certain members”.

“The AJOA is carefully considering any implications for its members, including reviewing which Australian courts, if any, may not afford judicial immunity to judicial officers,” Ms Sloan said.

“The district courts of Australia are not excluded from those considerations.”

The 76 members of the busy Federal Circuit and Family Court – which deals with immigration claims, bankruptcy, administrative law as well as divorce disputes – are up in arms, with at least four of the so-called division two judges refusing to sit on some cases until the uncertainty is resolved.

Federal Attorney-General Mark Dreyfus. Picture: NCA NewsWire/Martin Ollman

The chief justice of the court, Will Alstergren, has asked federal Attorney-General Mark Dreyfus to intervene. Mr Dreyfus’s office said: “The government is considering the Federal Court’s judgment.”

A spokesperson for division two of the Federal Circuit and Family Court said last month the situation could undermine the administration of justice, providing “another avenue for systems abuse by perpetrators of family violence and may result in delays in the resolution of disputes by the court”.

Some judges, speaking privately to The Australian, have called on governments to legislate to enshrine judicial immunity.

Other senior legal practitioners, however, point to Judge Vasta’s problematic record of being reversed and at times scathingly criticised on appeal, arguing that the Stradford case was a one-off. Judge Vasta is facing a separate lawsuit for imprisoning a second man for contempt of court.

A spokesperson for NSW Attorney-General Michael Daley said all judges, magistrates, and registrars in the state were protected under the Judicial Officers Act unless they acted outside their function or capacity.

The South Australian government said in a statement: “The government is not considering legislative changes at this time as magistrates and judges of the District Court … have the same immunities from liability as judges of the state’s Supreme Court.”