Judge Vasta successfully sued for false imprisonment

“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 some fairly 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.

The facts

In 2021, Judge Vasta was sued for $2M for false imprisonment of a party that appeared before him on 6 December 2018 in a family law matter.

The proceedings arose from Judge Vasta making the following declaration and order that day:

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 Judge Turner had “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.”

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 he may well have proceeded upon “an incorrect assumption”.

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.

Full story:

https://sterlinglawqld.com/judge-vasta-successfully-sued-for-false-imprisonment6548-2/