High court urged to keep judges' immunity despite 'gross miscarriage of justice'

“Those principles shouldn’t be wound back or weakened to provide a mechanism or pathway to compensation in a rare and extreme case such as the present (case),” he told the court.

The hearing follows a Federal Court ruling that a Brisbane man, known by the pseudonym Mr Stradford, was entitled to $309,000 compensation for wrongful imprisonment in divorce proceedings and Federal Circuit Court judge Salvatore Vasta was personally liable to pay part.

In a written submission to the High Court, Judge Vasta says in August 2018, he ordered Stradford to disclose gambling account statements.

The proceedings were adjourned and, following a brief hearing before another judge, returned to Judge Vasta in December 2018.

Wrongly believing the other judge had already decided Stradford was in contempt, Judge Vasta sentenced the father of two to a minimum six months’ jail for disobeying orders to provide financial documents.

Stradford appealed and six days later, Judge Vasta conceded he had erred and ordered his immediate release.

In February 2019, the Full Court of the Family Court overturned the sentence, finding: “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”.

Stradford successfully sued Judge Vasta for false imprisonment.

In his judgment last August, Federal Court Justice Michael Wigney also found the Commonwealth and Queensland to be vicariously liable due to actions taken by court, police and correctional officers in following Judge Vasta’s orders.

Justice Wigney awarded Stradford $309,000 in damages, including $50,000 in exemplary damages payable by Judge Vasta “to deter any repetition of such a thoroughly unacceptable abuse of judicial power in the future”.

He found Judge Vasta was not protected by immunity due to the “gross and obvious irregularity of procedure”.

That element called into question judges’ entitlement to immunity from lawsuits for conduct on the bench.

The judge and the federal and Queensland governments are each appealing the decision and the state of South Australia seeks to intervene in the case, saying if the Vasta decision is upheld, SA police and prison authorities may be exposed to liability for executing unlawful orders made by “inferior” courts.

Donaghue told the High Court on Wednesday there was no doubt Stradford suffered a gross miscarriage of justice.

“The Commonwealth is not denying that or seeking to minimise that in any way,” he said.

“This appeal presents a difficult, even somewhat extreme, context for this court to look at the issues that presents.”

He conceded that protecting judicial immunity principles in this case was “capable of producing harsh results”.

“There are mechanisms, albeit not perfect mechanisms, that exist where people suffer harsh results for which there is no legal recompense,” he said.

Section 65 of the Public Governance, Performance and Accountability Act 2013 gives the finance minister a “wide power” to make payments in special circumstances, he said.

“In the event that Mr Stradford loses, there is a statutory mechanism that could be engaged, where the question for the minister would be whether there are special circumstances,” he said.