Federal circuit judges are nervously looking over their shoulders. A number of them will not hear cases where there is uncertainty about their jurisdiction – resulting in further delays or trials being sent upstairs to other federal courts.
This is not all federal judges – just the ones from the “inferior” level of the judicial food chain – the federal circuit court.
This is the fallout from a recent federal court finding that circuit court judge Salvatore Vasta was liable for damages for imprisoning a family law litigant without the power or authority to do so.
Already some unhappy punters are threatening to sue judges – which has no doubt sent shivers up the spines of their honours.
These “inferior” judges were originally federal magistrates, later to pick up a bit of plumage as circuit court judges. Subsequently, the court was merged with the family court to create the camel-like federal circuit and family court of Australia – a palace of justice with judges split into two divisions.
Division one are your senior top of the range family law judges while division two comprises everyone else hearing and determining the full range federal law cases.
The “inferior” designation is not meant to be a hurtful description of the quality of the judge – it is merely the signature tune of judicial hierarchy.
Vasta is a division two inferior court judge and his head was recently delivered on a plate by Justice Michael Wigney of the very superior federal court of Australia.
Wigney decided something to which few had given much thought: federal inferior court judges are not immune from being sued for exceeding their powers.
It must have been thought that the common law stretched itself to protect judges lower down the pecking order – but Wigney found last month in the Stradford case, after tracing hundreds of years of legal history, that it didn’t.
In a matrimonial case Vasta ordered that Mr Stradford (a pseudonym) serve 12 months in prison for contempt, for allegedly failing to produce various financial records. He did seven days in police custody and prison, subject to what he claimed were fairly gruesome conditions.
The inferior courts have long been second-class citizens – from the time when there were just three royal courts at Westminster and the place was otherwise administered by justices of the peace.
Early in the 17th century superior court judges on occasions had to correct their underlings with “strokes of the rodde, or spur”.
Unfortunately, this custom has been discontinued – instead replaced with liability for damages where federal judges of inferior rank step out of line.
When the superior courts in Australia were established by statute, provisions were written in that imported from Westminster the judicial immunities and privileges – allowing judges to cause merry hell, making mistakes with impunity.
When the circuit court’s predecessor was created, judicial immunity was absent from the legislation.
Wigney said that Vasta had imprisoned Stradford without finding any of the facts necessary to make a legitimate order that the litigant was in contempt.
He acted in a high-handed and arbitrary manner, denying Stradford, “any modicum of procedural fairness or natural justice” – consequently he acted outside his jurisdiction without immunity against an award of damages.
Wigney awarded overall damages of nearly $310,000, which included a special award of exemplary damages of $50,000 against Vasta personally for imprisonment and deprivation of Stradford’s liberty. Vasta is reported to have filed a notice of appeal on Wednesday against Wigney’s decision.
This bit of personal damages has got all the lawyer guilds and the judges’ trade union on their hind legs, pressing for legislation to close the gap. The Australian Bar Association says judicial immunity “is an important institutional requirement in facilitating the fearless administration of justice”.
The Law Council of Australia and the Australian Judicial Officers Association agree.
It should be noted that Australia, alone in the common law world, affords barristers an immunity from being sued if they stuff up their clients’ cases – and that extends to solicitor advocates.
So, the rallying cry of the lawyers and judges has been hitched to the hapless Vasta.
He has a miserable record as a judge, with numerous birchings delivered by his betters. In the Stradford case he used what he thought was his judicial power in a bullying manner. In other cases he has been found to have made numerous errors of law and fact, that he has been rude and overbearing, with constant interruptions. In 2019 the Financial Review asked whether Vasta was “Australia’s worst judge”.
Already, the judiciary is near unaccountable, so how wise is it to rush into extending immunity to cover the egregious facts associated with Vasta’s performance?
It’s worrying that division two judges are having trouble working out the extent of their jurisdiction, in order to avoid the folly of excess.
But legislating to immunise this sort of behaviour may be a step too far.
• Richard Ackland writes at 500Words.com.au
