Queensland v Mr Stradford (a pseudonym)
[2025] HCA 3
•12 February 2025
HIGH COURT OF AUSTRALIA
GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ
Matter No S24/2024
STATE OF QUEENSLAND APPELLANT
AND
MR STRADFORD (A PSEUDONYM) & ORS RESPONDENTS
Matter No C3/2024
COMMONWEALTH OF AUSTRALIA APPELLANT
AND
MR STRADFORD (A PSEUDONYM) & ORS RESPONDENTS
Matter No C4/2024
HIS HONOUR JUDGE SALVATORE PAUL VASTA APPELLANT
AND
MR STRADFORD (A PSEUDONYM) & ORS RESPONDENTS
Queensland v Mr Stradford (a pseudonym)
Commonwealth of Australia v Mr Stradford (a pseudonym)
His Honour Judge Vasta v Mr Stradford (a pseudonym)[2025] HCA 3
Date of Hearing: 14 & 15 August 2024
Date of Judgment: 12 February 2025S24/2024, C3/2024 & C4/2024
ORDER
Matter No S24/2024
1.Appeal allowed.
2.Set aside orders 2 and 4 made by the Federal Court of Australia on 30 August 2023 and in their place order that the applicant's proceedings against the third respondent be dismissed.
3.The third respondent pay the first respondent's costs of the appeal.
Matter No C3/2024
1.Appeal allowed.
2.Set aside orders 2 and 3 made by the Federal Court of Australia on 30 August 2023 and in their place order that the applicant's proceedings against the second respondent be dismissed.
3.The appellant pay the first respondent's costs of the appeal.
Matter No C4/2024
1.Appeal allowed.
2.Set aside orders 2, 3, 4 and 5 made by the Federal Court of Australia on 30 August 2023 and in their place order that the applicant's proceedings against the first respondent be dismissed.
3.The second respondent pay the first respondent's costs of the appeal.
On appeal from the Federal Court of Australia
Representation
G J D del Villar KC, Solicitor-General of the State of Queensland, with J M Horton KC, D M Favell and F J Nagorcka for the State of Queensland in each appeal (instructed by Crown Law (Qld))
S P Donaghue KC, Solicitor-General of the Commonwealth, and T M Begbie KC with D P Hume and O J Ronan for the Commonwealth of Australia in each appeal (instructed by Australian Government Solicitor)
S J Wood KC with B W Jellis SC and T I Katz for His Honour Judge Salvatore Paul Vasta in each appeal (instructed by King & Wood Mallesons)
P D Herzfeld SC with D J Reynolds for Mr Stradford in each appeal (instructed by Ken Cush & Associates)
M J Wait SC, Solicitor-General for the State of South Australia, with J F Metzer for the Attorney-General for the State of South Australia, intervening in each appeal (instructed by Crown Solicitor's Office (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Queensland v Mr Stradford (a pseudonym)
Commonwealth of Australia v Mr Stradford (a pseudonym)
His Honour Judge Vasta v Mr Stradford (a pseudonym)Constitutional law (Cth) – Chapter III court – Judicial immunity – Status of orders of Federal Circuit Court of Australia – Where judge of Federal Circuit Court of Australia ("Judge Vasta") declared Mr Stradford in contempt of disclosure orders ("contempt declaration") and sentenced Mr Stradford to imprisonment ("imprisonment order") – Where Mr Stradford was imprisoned by various agents, employees or contractors of the Commonwealth and Queensland acting in reliance upon imprisonment order – Where Full Court of Family Court of Australia set aside contempt declaration and imprisonment order due to lack of power to make the declaration and order and for failure to afford procedural fairness to Mr Stradford – Where primary judge in Federal Court of Australia found Judge Vasta liable to Mr Stradford for false imprisonment and Commonwealth and Queensland vicariously liable – Where primary judge held that imprisonment order and warrant of commitment were affected by jurisdictional error, invalid and of no legal effect – Where primary judge found Judge Vasta lost protection of judicial immunity from civil suit – Where primary judge did not accept that persons acting in reliance upon the imprisonment order and warrant of commitment were protected from liability for their actions in imprisoning Mr Stradford – Whether effect of s 17 of Federal Circuit Court of Australia Act 1999 (Cth) was that contempt declaration and imprisonment order of Federal Circuit Court were valid unless and until set aside – Scope of common law immunity from civil suit arising out of acts done in exercise or purported exercise of judicial function or capacity – Whether persons acting in reliance upon imprisonment order and warrant of commitment liable to Mr Stradford despite acting pursuant to, or in accordance with, warrant of commitment which appeared regular on its face – Whether s 249 of Criminal Code (Qld) applied to warrant issued by Federal Circuit Court.
Words and phrases – "collateral challenge", "constables", "contempt", "correctional officers", "defence of justification", "gaolers", "inferior court", "judicial function", "judicial immunity", "judicial officer", "jurisdictional error", "justification", "ministerial officer", "officer of the court", "order", "police officers", "sheriff", "subject matter jurisdiction", "superior court", "superior court of record", "warrant".
Family Law Act 1975 (Cth), Pts XIIIA, XIIIB.
Federal Circuit Court of Australia Act 1999 (Cth), s 17.
Criminal Code (Qld), s 249.
GAGELER CJ, GLEESON, JAGOT AND BEECH-JONES JJ. Over hundreds of years, there has been a debate within the common law about the scope of the immunity from civil suit of judges of so-called "inferior courts" for acts and omissions in the performance or purported performance of the judicial function, and the extent to which that scope differs from the scope of the immunity afforded to judges of so-called "superior courts".
Although there are differences of significance between inferior courts and superior courts, there is no justification for differentiating between the scope of the immunity from civil suit afforded to judges of all courts. This is so because the purpose of the immunity is the same for judges of all courts. That purpose is to facilitate the independent performance of the judicial function free from the spectre of litigation,[1] as well as to enhance the finality of judgments quelling legal controversies.[2] The necessity for judicial independence, and the interests of finality of judgments, apply to the exercise of the judicial function by judges of both inferior courts and superior courts. Judicial immunity does not exist for the benefit of individual judges.
[1]Fingleton v The Queen (2005) 227 CLR 166 at 186 [38]-[39].
[2]D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 19 [40].
Recourse against a wrongful act or omission by a judicial officer (including a negligent, unjust, or even malicious act or omission by a judicial officer) in the performance or purported performance of a judicial function is to be found within such system of appeals as might be applicable, such means of collateral challenge as might be available, and such processes of discipline and removal from office to which the judicial officer might be amenable. It is not to be found in a civil suit against the judicial officer.
As the facts and outcome of these appeals demonstrate, the effect of this absolute immunity may be such that a victim of unjust treatment by a judicial officer will be left with no means of obtaining monetary compensation through the courts. If that is so, and the unjust treatment has caused harm to the victim, it may be that one or other of the legislative schemes for the making of an ex gratia or "act of grace" payment may compensate the victim.[3]
[3]See, eg, Public Governance, Performance and Accountability Act 2013(Cth), s 65(1).
Summary
On 6 December 2018, after what was rightly described by the primary judge as a "parody" of a court hearing, the first respondent, who has been given the pseudonym "Mr Stradford", was convicted of contempt of court and sentenced to a term of imprisonment by one of the appellants, his Honour Judge Salvatore Paul Vasta, a judge of the Federal Circuit Court of Australia.
The Federal Circuit Court was at that time designated by the Federal Circuit Court of Australia Act 1999 (Cth)[4] as "a court of record",[5] and accordingly as an inferior court,[6] unlike the Federal Court of Australia and what was at that time the Family Court of Australia,[7] each of which was established as "a superior court of record".[8]
[4]The Federal Circuit Court is now continued in existence as the "Federal Circuit and Family Court of Australia (Division 2)" by the Federal Circuit and Family Court of Australia Act 2021 (Cth), s 8(2).
[5]Federal Circuit Court of Australia Act 1999 (Cth), s 8(3).
[6]Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329 at 343 [26].
[7]The Family Court is now continued in existence as the "Federal Circuit and Family Court of Australia (Division 1)" by the Federal Circuit and Family Court of Australia Act 2021 (Cth), s 8(1).
[8]Federal Court of Australia Act 1976 (Cth), s 5(2); Family Law Act 1975 (Cth), s 21(2).
Upon being sentenced, Mr Stradford was escorted from the courtroom to a holding cell in the court complex by guards employed by MSS Security Pty Ltd ("the MSS Guards"), a contractor engaged by another appellant, the Commonwealth of Australia. Around half an hour later Mr Stradford was collected from the court complex by officers of the Queensland Police Service ("the Queensland police officers"), handcuffed, and transported in a police van to the Roma Street Watchhouse. On 10 December 2018, Mr Stradford was transferred to the Brisbane Correctional Centre where he was detained by officers of Queensland Corrective Services ("the Queensland correctional officers") until his release on 12 December 2018.
Mr Stradford's time in custody was distressing. He witnessed and was subjected to acts of violence. He experienced suicidal thoughts.
The primary judge upheld a claim brought by Mr Stradford for damages for false imprisonment against each of Judge Vasta, the Commonwealth and another appellant, the State of Queensland.[9] The damages awarded in favour of Mr Stradford included an award of $50,000 in exemplary damages against Judge Vasta.[10] His Honour found that Judge Vasta's conduct "demonstrated a thoroughly reckless disregard of, if not outright contempt for, Mr Stradford and his rights" and that the award of exemplary damages would "serve to deter any repetition of such a thoroughly unacceptable abuse of judicial power in the future".[11] The Commonwealth was held to be vicariously liable for the conduct of the MSS Guards.[12] Queensland was found to be vicariously liable for the conduct of the relevant Queensland police officers and the Queensland correctional officers.[13]
[9]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [3]-[4].
[10]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [5], [666].
[11]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [646].
[12]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [553].
[13]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [558].
Removed into this Court[14] are appeals from that judgment by each of Judge Vasta, the Commonwealth and Queensland that were previously pending in the Full Court of the Federal Court of Australia. Three principal issues are raised by the appeals. The first issue is whether the effect of s 17 of the Federal Circuit Court of Australia Act was that the order made by Judge Vasta imprisoning Mr Stradford was valid even though it was affected by jurisdictional error. The second issue concerns the scope of the immunity from civil suit of judges of inferior courts, such as judges of the Federal Circuit Court. The third issue is whether persons such as the MSS Guards, the Queensland police officers and the Queensland correctional officers have a defence to Mr Stradford's action because they executed an order or warrant issued by a court that appeared valid on its face, even though it was invalid because of the various errors committed by Judge Vasta in sentencing Mr Stradford to imprisonment.
[14]Judiciary Act 1903 (Cth), s 40(1).
For reasons to be explained, the resolution of each of those three principal issues is as follows. In respect of the first issue, the order made by Judge Vasta imprisoning Mr Stradford was invalid.
In respect of the second issue, the common law of Australia affords the same immunity from civil suit to judges of inferior courts as it does to judges of superior courts. Under that common law, judges of Australian courts[15] – being the "courts" referred to in s 71 of the Constitution including any court of a Territory[16] and any "court of a State" as referred to in s 77(iii) of the Constitution (irrespective of whether those courts are invested with federal jurisdiction) – are immune from civil suit arising out of acts done in the exercise, or purported exercise, of their judicial function or capacity.[17] As Judge Vasta purported to perform such a function in convicting and sentencing Mr Stradford, he is not liable to Mr Stradford for false imprisonment.
[15]Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at 425 [42].
[16]North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at 595 [41].
[17]Re East; Ex parte Nguyen (1998) 196 CLR 354 at 365-366 [30], citing Rajski v Powell (1987) 11 NSWLR 522 and Mann v O'Neill (1997) 191 CLR 204.
In respect of the third issue, the common law affords some protection from civil liability to those who have a legal duty to enforce or execute orders or warrants made or issued in judicial proceedings of the courts just described, including an inferior court, even if those orders or warrants are invalid for jurisdictional error. In the case of invalid orders or warrants, this protection does not extend to authorise acts done in enforcing or executing an order or warrant of a kind which, on its face, is beyond the power of the relevant court to make or issue.
Each of the Queensland police officers and the Queensland correctional officers had a legal duty to enforce or execute orders or warrants made or issued by the Federal Circuit Court. The MSS Guards also had a duty to enforce an oral order made by Judge Vasta requiring them to detain Mr Stradford. There was nothing apparent on the face of the orders made and warrant issued by Judge Vasta which suggested they were beyond his power to make. Otherwise, none of the Queensland police officers, the Queensland correctional officers and the MSS Guards were aware of any defect of authority on the part of Judge Vasta to imprison Mr Stradford. It follows that they also are not liable to Mr Stradford.
Accordingly, the appeals must be allowed, the primary judge's decision set aside and Mr Stradford's proceedings dismissed.
The balance of this judgment is structured as follows:
Part I – Background [17]-[30]
Part II – The primary judgment [31]-[34]
Part III – Were the imprisonment order and the warrant invalid? [35]‑[73]
Part IV – Did Judge Vasta have immunity from Mr Stradford's suit? [74]-[114]
Part V – Could the MSS Guards, the Queensland police officers and the Queensland correctional officers rely on the imprisonment order or the warrant? [115]-[159]
Part VI – Conclusion and orders [160]-[161]
Part I – Background
In April 2017, Mr Stradford commenced proceedings in the Federal Circuit Court against his then wife ("Mrs Stradford") seeking property adjustment orders under s 79 of the Family Law Act 1975 (Cth).
The proceedings were listed for final hearing before Judge Vasta on 10 August 2018. On that day, Mr Stradford and Mrs Stradford were not legally represented. Judge Vasta adjourned the proceedings to 26 November 2018 after concluding that Mr Stradford had failed to comply with previous orders for the disclosure of documents. Judge Vasta threatened to imprison Mr Stradford if he did not produce the documents sought by Mrs Stradford.
Judge Vasta ordered that Mr Stradford make "full and frank disclosure" of various categories of financial documents including bank and gambling account statements. Judge Vasta also made an order to the effect that, if on 26 November 2018 the Court concluded that Mr Stradford had not made "full and frank disclosure", then Mr Stradford would be dealt with for contempt on 5 December 2018 and that otherwise one day would be reserved for the final hearing.
On 26 November 2018, the proceedings were listed before her Honour Judge Turner. Again, Mr Stradford and Mrs Stradford each appeared unrepresented. Judge Turner made handwritten annotations on a copy of the orders made on 10 August 2018 circling the categories of documents ordered to be produced by Judge Vasta that Mrs Stradford claimed Mr Stradford had failed to produce. Mr Stradford told the Court that he had produced all the documents that he was "physically able to provide". In lieu of 5 December 2018, Judge Turner adjourned the proceedings until 6 December 2018 "for hearing of the contempt application". At no time was a contempt application filed.
The proceedings were listed before Judge Vasta on 6 December 2018. As before, both Mr Stradford and Mrs Stradford appeared unrepresented. At the commencement of the hearing Judge Vasta purported to recite the history of the proceedings since 10 August 2018 and stated that the final hearing could not proceed as, according to Judge Vasta, it had been determined that Mr Stradford was "in contempt of the orders that [he] made on 10 August". Mr Stradford advised Judge Vasta that he tried to comply with the orders but that he was unable to produce some categories of documents. Mrs Stradford maintained that his disclosure was deficient.
Judge Vasta adjourned the proceedings for a brief period to allow the parties to discuss settlement, but no settlement was reached. After the adjournment Judge Vasta stated that he would "go ahead with the contempt hearing" and that he "hope[d]" Mr Stradford had brought his "toothbrush". Mrs Stradford repeatedly stated that, while she was dissatisfied with Mr Stradford's disclosure and approach to a property settlement, she did not want him to go to prison.
There was a further short adjournment. After the hearing resumed, Judge Vasta again asserted that on 26 November 2018 Mr Stradford had been found in contempt of the orders made on 10 August 2018. Judge Vasta asked Mr Stradford whether there was anything he wanted to say. Mr Stradford tried to explain that he had attempted to comply with the orders for disclosure, but he was cut off by Judge Vasta who dismissed his explanation as "rubbish".
Judge Vasta then delivered ex tempore reasons. Judge Vasta recorded that on 26 November 2018 Judge Turner had found that Mr Stradford had not complied with the orders made on 10 August 2018 and "[f]or that reason" Mr Stradford was in contempt of those orders.[18] Judge Vasta made a declaration as follows ("the contempt declaration"):
"That [Mr Stradford] is in contempt of Order 3(a), (h), (j), (k), (l), (m), (n) and (o) of Orders made by Judge Vasta on 10 August 2018 in that [Mr Stradford] has failed to make full and frank financial disclosure."
[18]Stradford & Stradford [2018] FCCA 3890 at [13]-[14].
The sub-paragraphs of Order 3 referred to in this declaration were those parts of the orders made by Judge Vasta on 10 August 2018 for the production of documents that Mrs Stradford advised Judge Turner on 26 November 2018 that Mr Stradford had not produced. As noted, Mr Stradford had advised her Honour (and Judge Vasta) that he had made his best efforts to comply with the orders made on 10 August 2018.
Judge Vasta sentenced Mr Stradford to a period of imprisonment for 12 months to be served immediately, but also ordered that he be released from prison on 6 May 2019, with the balance of the sentence to be suspended for a period of two years commencing on 6 December 2018 ("the imprisonment order").
During the short adjournment prior to delivering judgment, Judge Vasta arranged for the MSS Guards to attend the courtroom. After delivering judgment and making orders, the hearing concluded with Judge Vasta stating:
"I will sign the warrant that will commit [Mr Stradford] to prison and the [Queensland police officers] will arrive soon to take him to prison. In the meantime, security [ie, the MSS Guards], you will have to escort [Mr Stradford] to the cell downstairs to await the officers to come and take him to prison. All right. Thank you. We will adjourn." (emphasis added)
Shortly after the hearing, Judge Vasta signed a document entitled "Warrant of Commitment Family Law Act 1975" ("the warrant"). The warrant was addressed to "[t]he Marshal", being the Marshal of the Federal Circuit Court,[19] all officers of the Australian Federal Police, all officers of the State and Territory police forces and the Commissioner of Queensland Corrective Services. The warrant commanded the Marshal and the officers of the police forces to "take and deliver [Mr Stradford] to the Commissioner of Queensland Corrective Services", along with the warrant. The Commissioner of Queensland Corrective Services was directed by the warrant to "receive [Mr Stradford] into [their] custody, and to keep [him] in accordance" with the imprisonment order.
[19]Federal Circuit Court of Australia Act, s 99(1)(d).
The remainder of the actions taken to enforce the warrant have already been described above. While he was in custody, Mr Stradford obtained legal representation. On 12 December 2018, the matter was again listed before Judge Vasta who heard and granted an application to stay the imprisonment order.[20] Judge Vasta accepted that he may have been in error in assuming that Judge Turner had found Mr Stradford was "prima facie in contempt" of the orders made on 10 August 2018.[21]
[20]Stradford & Stradford [No 2] [2018] FCCA 3961.
[21]Stradford & Stradford [No 2] [2018] FCCA 3961 at [6].
On 15 February 2019, the Full Court of the Family Court (as it then was) upheld Mr Stradford's appeal against Judge Vasta's decision and set aside the contempt declaration and the imprisonment order.[22] It suffices to note that the Full Court concluded that "the processes employed by [Judge Vasta] were so devoid of procedural fairness" to Mr Stradford and the "reasons for judgment so lacking in engagement with the issues of fact and law to be applied" that it would be an "affront to justice" to permit the contempt declaration and the imprisonment order to stand.[23]
[22]Stradford v Stradford (2019) 59 Fam LR 194.
[23]Stradfordv Stradford (2019) 59 Fam LR 194 at 196 [9].
Part II – The primary judgment
Mr Stradford sued Judge Vasta, the Commonwealth and Queensland for the tort of false imprisonment. He also sued Judge Vasta for the tort of collateral abuse of process, but that claim was dismissed[24] and he has not appealed that dismissal.
[24]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [8], [166].
In relation to Mr Stradford's claim for false imprisonment, there was no dispute that Mr Stradford was imprisoned for the whole of the relevant period by reason of the conduct of Judge Vasta and imprisoned for particular periods by the MSS Guards, the Queensland police officers and the Queensland correctional officers. However, both the Commonwealth and Judge Vasta contended that Mr Stradford's imprisonment was lawful because the imprisonment order and the warrant were valid unless and until set aside (by the Full Court of the Family Court).[25] The primary judge rejected this contention. His Honour held that the imprisonment order and the warrant were affected by jurisdictional error, and were invalid and of no legal effect such that there was no lawful justification for Mr Stradford's imprisonment.[26] The Commonwealth and Judge Vasta challenge this finding, but only to the extent of contending that the effect of s 17(1) of the Federal Circuit Court of Australia Act is that, even if the imprisonment order and the warrant were affected by jurisdictional error, they were nevertheless valid unless and until set aside. The Attorney‑General for the State of South Australia intervened and advanced a unique argument that the warrant was valid even though the imprisonment order was not.
[25]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [175].
[26]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [197], [373].
The primary judge also concluded that, because of Judge Vasta's status as a judge of an inferior court and the nature of the errors he committed in making the imprisonment order, his actions were not protected by judicial immunity.[27] Both Judge Vasta and the Commonwealth challenge this finding.
[27]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [372]-[374].
Before the primary judge the Commonwealth and Queensland contended that, even if the imprisonment order and the warrant were invalid, they were not liable to Mr Stradford for damages for false imprisonment because the MSS Guards, the Queensland police officers and the Queensland correctional officers acted pursuant to, or in accordance with, a warrant which appeared regular on its face. The primary judge rejected this contention.[28] Each of the Commonwealth and Queensland challenge that rejection. A separate aspect of Queensland's challenge is the contention that the primary judge erred in failing to conclude that the actions of the Queensland police officers and the Queensland correctional officers in executing the warrant were rendered lawful by s 249 of the Criminal Code (Qld).[29]
[28]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [524].
[29]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [548].
Part III – Were the imprisonment order and the warrant invalid?
The first issue that arises on the appeals is whether the imprisonment order and the warrant were valid until they were set aside by the Full Court of the Family Court. If they were valid during that period, then Mr Stradford's imprisonment was not unlawful.
Section 17 of the Federal Circuit Court of Australia Act
At all relevant times, s 17 of the Federal Circuit Court of Australia Act provided:
"Contempt of court
(1)The Federal Circuit Court of Australia has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.
(2)Subsection (1) has effect subject to any other Act.
(3)The jurisdiction of the Federal Circuit Court of Australia to punish a contempt of the Federal Circuit Court of Australia committed in the face or hearing of the Federal Circuit Court of Australia may be exercised by the Federal Circuit Court of Australia as constituted at the time of the contempt.
Note: See also section 112AP of the Family Law Act 1975, which deals with family law or child support proceedings."
A power in materially identical terms to that conferred on the Federal Circuit Court by this provision was conferred on the Family Court by s 35 of the Family Law Act and on the Federal Court by s 31 of the Federal Court of Australia Act 1976 (Cth). From the time of the enactment of the Judiciary Act 1903 (Cth), s 24 has provided that the High Court "shall have the same power to punish contempts of its power and authority as is possessed at the commencement of this Act by the Supreme Court of Judicature in England".
Parts XIIIA and XIIIB of the Family Law Act
Part XIIIA of the Family Law Act is entitled "[s]anctions for failure to comply with orders, and other obligations, that do not affect children". Part XIIIB is entitled "[c]ontempt of court".
Within Pt XIIIA, s 112AD(1) provides:
"If a court having jurisdiction under this Act is satisfied that a person has, without reasonable excuse, contravened an order under this Act, the court may make an order for the imposing, in respect of the person, of one or more of the sanctions available to be imposed under subsection (2), being a sanction or sanctions that the court considers to be the most appropriate in the circumstances."
Within the meaning of s 112AD(1), the Federal Circuit Court was at all relevant times "a court having jurisdiction under this Act", being vested by the Family Law Act with jurisdiction to hear and determine "matrimonial causes",[30] including proceedings of the kind commenced by Mr Stradford. For the purposes of s 112AD(1), a person bound by an order under the Family Law Act is taken to have contravened the order if, and only if, they either intentionally failed to comply with the order or made no reasonable attempt to comply with the order.[31]
[30]Family Law Act, s 39(1A); Federal Circuit Court of Australia Act, s 10(1).
[31]Family Law Act, s 112AB(1)(a).
The sanctions referred to in s 112AD(2) are: the imposition of a requirement on the person to enter into a bond; the imposition of a fine; a sentence of imprisonment imposed in accordance with s 112AE; and certain non-custodial options provided for under the laws of participating States and Territories.[32] A sentence of imprisonment can only be imposed in respect of a contravention of a maintenance order if the court is satisfied that the contravention of that order was "intentional or fraudulent"[33] and, in any case, if it would not be appropriate to deal with the contravention pursuant to any of the other paragraphs of s 112AD(2).[34] The period of imprisonment cannot exceed 12 months.[35] The court may: suspend the sentence;[36] direct that the person be released upon entering into a bond;[37] or order the person's release if satisfied they will comply with the order concerned.[38]
[32]Family Law Act, ss 112AD(2)(b), 112AG.
[33]Family Law Act, s 112AD(2A).
[34]Family Law Act, s 112AE(2).
[35]Family Law Act, s 112AE(1).
[36]Family Law Act, s 112AE(4A)(a).
[37]Family Law Act, s 112AE(5).
[38]Family Law Act, s 112AE(7).
Within Pt XIIIB, s 112AP relevantly applies to a contempt of a "court" exercising jurisdiction in proceedings by virtue of the Family Law Act[39] that either "does not constitute a contravention of an order under this Act" or involves a contravention which is a "flagrant challenge to the authority of the court".[40] Thus, it includes contempts committed in the face of the court,[41] scandalising the court,[42] and "contumacious or defiant" failures to comply with court orders.[43] In those circumstances, s 112AP(2) provides that, "[i]n spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court". In the case of a natural person, the court may punish the contempt by committal to prison, or fine, or both.[44] The court may also make an order for punishment on terms, suspension of punishment, or the giving of security for good behaviour.[45]
[39]Family Law Act, s 4.
[40]Family Law Act, s 112AP(1).
[41]See, eg, Morris v Crown Office [1970] 2 QB 114 at 116; Lewis v Judge Ogden (1984) 153 CLR 682 at 688; Lane v Morrison (2009) 239 CLR 230 at 261 [99].
[42]See, eg, Ahnee v Director of Public Prosecutions [1999] 2 AC 294 at 300, cited in Re Colina; Ex parte Torney (1999) 200 CLR 386 at 405 [52].
[43]Doyle v The Commonwealth (1985) 156 CLR 510 at 516, cited in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375 at 396 [67].
[44]Family Law Act, s 112AP(4).
[45]Family Law Act, s 112AP(6).
Section 112AP(3) of the Family Law Act provides that the applicable Rules of Court "may provide for practice and procedure as to charging with contempt and the hearing of the charge". As at 2018, such provision was made by r 19.02 of the Federal Circuit Court Rules 2001 (Cth).
Jurisdictional error and invalidity
The primary judge found that, although Judge Vasta had jurisdiction to hear and determine the matter between Mr Stradford and Mrs Stradford, Judge Vasta committed five errors in making the imprisonment order each of which constituted a jurisdictional error.[46]
[46]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [134]-[135], [174].
First, irrespective of the source of the Federal Circuit Court's power to punish for contempt, the primary judge found that Judge Vasta lacked power to make the imprisonment order in the absence of a finding that Mr Stradford had breached any court order.[47]
[47]Stradford (a pseudonym) v Judge Vasta ]2023] FCA 1020 at [81].
Second, the primary judge found that Judge Vasta lacked power to make the imprisonment order because he did not apply the provisions of either Pt XIIIA or Pt XIIIB of the Family Law Act.[48] In particular, Judge Vasta did not find that Mr Stradford's alleged non-compliance with the orders of 10 August 2018 was a "flagrant challenge to the authority of the court".[49] Judge Vasta had also not found: that Mr Stradford's alleged non-compliance involved an intentional failure to comply with those orders[50] or that Mr Stradford had made no reasonable attempt to comply with the orders;[51] that he did so without reasonable excuse;[52] and that no sanction but imprisonment was warranted.[53]
[48]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [103]-[104].
[49]Family Law Act, s 112AP(1)(b).
[50]Family Law Act, s 112AB(1)(a)(i).
[51]Family Law Act, s 112AB(1)(a)(ii).
[52]Family Law Act, s 112AD(1).
[53]Family Law Act, s 112AE(2).
In making these findings, the primary judge appears to have assumed that the orders made by Judge Vasta on 10 August 2018 for the production of documents were an "order under this Act" (ie, the Family Law Act) for the purposes of both Pt XIIIA[54] and Pt XIIIB,[55] as opposed to, for example, an order under the Federal Circuit Court of Australia Act or the Federal Circuit Court Rules.[56] No submission to the contrary was made on appeal. However, even if the orders made on 10 August 2018 were not an "order under this Act", Pt XIIIB would still have been engaged because the issue before Judge Vasta was an alleged contempt of a "court" exercising jurisdiction in proceedings by virtue of the Family Law Act, but not one which constituted a contravention of an order under that Act. The other findings of error would also be unaffected.
[54]Family Law Act, s 112AA.
[55]See Family Law Act, s 112AP(9). This assumption was presumably made on the basis that the orders made on 10 August 2018 constituted "any other order ... which [the court] thinks it is necessary to make to do justice" in accordance with Family Law Act, s 80(1)(k).
[56]See, eg, Federal Circuit Court of Australia Act, s 15(a); Federal Circuit Court Rules 2001 (Cth), r 14.06.
Third, the primary judge found that Judge Vasta failed to comply with r 19.02 of the Federal Circuit Court Rules.[57] In particular, contrary to r 19.02(2), no contempt application was filed in the Court and, contrary to r 19.02(3), no such application was filed by an appropriate person, the contempt hearing before Judge Vasta (such as it was) occurring on the Judge's own motion. Further, contrary to r 19.02(6), Judge Vasta did not tell Mr Stradford the particulars of the allegation of contempt or give him the opportunity to admit or deny the allegation, and Judge Vasta did not hear any evidence concerning the allegation. Contrary to r 19.02(7), there was also no assessment by Judge Vasta of whether there was a prima facie case and, even if there had been, Mr Stradford was not invited to state his defence, after which the Court would determine the charge.
[57]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [107]-[110].
Fourth, the primary judge found that Judge Vasta denied Mr Stradford procedural fairness (and acted in a "thoroughly unsatisfactory and unjudicial manner").[58]
[58]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [118].
Fifth, the primary judge found that Judge Vasta was affected by actual bias in prejudging or "predetermin[ing] that the appropriate sanction for Mr Stradford's non‑compliance with the [orders of 10August 2018] was a substantial sentence of imprisonment".[59]
[59]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [134]-[135].
The primary judge held that, as the imprisonment order was made by an inferior court and was affected by jurisdictional error, it lacked legal force from the time it was made and did not provide justification for Mr Stradford's imprisonment.[60]
[60]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [184], [188], [195].
Subject to the Commonwealth's and Judge Vasta's contentions about the effect of s 17(1) of the Federal Circuit Court of Australia Act, the appellants did not challenge this holding in this Court. They were right not to do so.
It is established that an order of an inferior court that is affected by jurisdictional error has no legal force as an order of that court[61] so that, for example, a failure to obey such an order cannot be a contempt of that court.[62] Such an order of an inferior court is nevertheless "corrigible on appeal" (that is, subject to correction) and capable of being subject to prohibition.[63] By contrast, an order of a superior court is valid unless and until set aside including where the order is made without jurisdiction,[64] such as where the order of the superior court was based on a statute that was unconstitutional.[65]
[61]New South Wales vKable (2013) 252 CLR 118 ("Kable") at 140-141 [56].
[62]Pelechowksi v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 445 [27], 453 [55], 456-457 [71], citing Attorney‑General for New South Wales v Mayas PtyLtd (1988) 14 NSWLR 342 at 357 and United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 335-336.
[63]Posner v Collector for Inter-State Destitute Persons (Vict) (1946) 74 CLR 461 at 476.
[64]Cameron v Cole (1944) 68 CLR 571 at 590, cited in Kable (2013) 252 CLR 118 at 133 [32].
[65]Kable (2013) 252 CLR 118.
The effect of s 17 and Pts XIIIA and XIIIB
The Commonwealth and Judge Vasta contended before the primary judge and on appeal that the effect of s 17 of the Federal Circuit Court of Australia Act was to render the Federal Circuit Court a superior court when exercising the power to punish for contempt conferred by s 17. They referred in support to Day v The Queen[66] where it was held that a statutory provision conferring on the District Court of Western Australia "all the jurisdiction and powers that the Supreme Court has in respect of any indictable offence"[67] (and a provision making the "practice and procedure" of both courts the same[68]) rendered the District Court a "superior court" for the purpose of imposing a sentence for an indictable offence, even though it is an inferior court of record for other purposes.[69]
[66](1984) 153 CLR 475 at 479.
[67]District Court of Western Australia Act 1969 (WA), s 42(1).
[68]District Court of Western Australia Act 1969 (WA), s 44.
[69]District Court of Western Australia Act 1969 (WA), s 8(1).
Were this contention correct, then the imprisonment order made by Judge Vasta on 6 December 2018 would have been valid until set aside by the Full Court of the Family Court on 15 February 2019, even though it was affected by jurisdictional error.
One of the bases for the primary judge's rejection of this contention was his Honour's view that Pts XIIIA and XIIIB of the Family Law Act "exclude[] any other power to deal with contempt", such as s 17 of the Federal Circuit Court of AustraliaAct.[70] On appeal, this view was embraced by Mr Stradford but disputed by the Commonwealth. The Commonwealth contended that Pts XIIIA and XIIIB regulated the exercise of the power conferred by s 17 but did not exclude it as a source of power to punish for contempt.
[70]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [97].
The view of the primary judge that Pts XIIIA and XIIIB of the Family Law Act excluded s 17 of the Federal Circuit Court of AustraliaAct as a source of power to punish for contempt cannot be accepted. The contrary view is to be preferred having regard both to legislative history and to interpretative principle.
The original form of what is now Pt XIIIA of the Family Law Act was inserted into the Family Law Act with effect from 25 January 1990.[71] From the time of enactment of the Family Law Act until 31 August 2021, s 35 of the Act was in relevantly identical terms to s 17 of the Federal Circuit Court of Australia Act, save that it applied to the Family Court. Immediately prior to the insertion of Pt XIIIA, s 108(1) of the Family Law Act provided that, "[n]otwithstanding any other law, a court having jurisdiction under this Act may punish persons for contempt of that court". The balance of s 108 was consistent with the balance of s 112AP described above. The courts exercising jurisdiction under the Family Law Act were also conferred with other powers to impose sanctions for breaching particular orders.[72]
[71]Family Law Amendment Act 1989 (Cth), s 17.
[72]See Family Law Act, ss 70(6), 114(4), which were repealed by ss 10 and 18 of the Family Law Amendment Act. See also Australian Law Reform Commission, Contempt, Report No 35 (1987) at 343 [591].
Provisions such as the former s 108 were important because the courts that were (and are) vested with jurisdiction under the Family Law Act include not just the Family Court and other superior courts of record, but also the courts of summary jurisdiction of a State or Territory.[73] Reference has already been made to one difference between superior courts and inferior courts, namely the status of the orders of these courts when affected by jurisdictional error.[74] A further difference concerns the power and authority of such courts to punish for contempt. In the absence of a statutory provision to the contrary, superior courts of record possess the power to try and punish contempts of any kind relating to that court, as well as contempts of inferior courts over which they have supervisory jurisdiction.[75] However, without a statutory provision providing a power to do so, inferior courts of record can only punish for contempts committed "in the face of the [c]ourt".[76] Courts that are not courts of record, without statutory provision providing a power to do so, have no power to punish for contempts of any kind.[77] Thus, former s 108 of the Family Law Act ensured that, irrespective of how the courts of summary jurisdiction of a State or Territory were constituted by their respective legislature, when exercising jurisdiction conferred by the Family Law Act those courts possessed the power to enforce orders made under that Act and ensure their processes were not disrupted.
[73]Family Law Act, s 39(1), (6).
[74]See generally, Campbell, "Inferior and Superior Courts and Courts of Record" (1997) 6 Journal of Judicial Administration 249 at 250-253.
[75]R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 241-244, 254-256; John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 360, 363.
[76]R v Lefroy (1873) LR 8 QB 134 at 137; In re Dunn; In re Aspinall [1906] VLR 493 at 501; The Master Undertakers' Association of NSW v Crockett (1907) 5 CLR 389 at 392; Metal Trades (1951) 82 CLR 208 at 241-244, 254.
[77]In re Dunn; In re Aspinall [1906] VLR 493 at 495; Davies v Davies (1919) 26 CLR 348 at 363; Reece v McKenna; Ex parte Reece [1953] St R Qd 258 at 262; Badry v Director of Public Prosecutions [1983] 2 AC 297 at 307; Varnavides v Victorian Civil and Administrative Tribunal (2005) 12 VR 1 at 6 [18].
The original form of what is now Pt XIIIA was introduced following a report of the Australian Law Reform Commission on contempt.[78] The report recommended the enactment of a single piece of legislation prescribing and regulating the powers of all Federal Courts to punish for contempt.[79] The report also recommended the repeal of provisions such as ss 35 and 108 of the Family Law Act, along with the introduction of a specific regime to deal with non-compliance with orders made under the Family Law Act applicable to all courts exercising jurisdiction in proceedings under the Act.[80] The latter recommendation was taken up by the introduction of Pt XIIIA and the provisions providing for penalties for contraventions of court orders were repealed.[81] However, the former recommendation was not accepted and, thus, s 35 of the Family Law Act remained. Former s 108 was "relocated" as s 112AP.[82] In light of the enactment of Pt XIIIA, s 112AP was modified to apply to all contempts of any court exercising jurisdiction under the Family Law Act, save for those involving a contravention of an order, unless the contravention involved a "flagrant challenge to the authority of the court".
[78]Australian Law Reform Commission, Contempt, Report No 35 (1987).
[79]Australian Law Reform Commission, Contempt, Report No 35 (1987) at 28-29 [44], 41-42 [66].
[80]Australian Law Reform Commission, Contempt, Report No 35 (1987) at 366-368 [630]-[632].
[81]See Family Law Act, ss 70(6), 114(4), which were repealed by ss 10 and 18 of the Family Law Amendment Act.
[82]Australia, Senate, Family Law Amendment Bill 1989, Explanatory Memorandum at 17 [47]. Section 112AP was originally located in Div 3 of Pt XIIIA of the Family Law Act before Div 3 became Pt XIIIB by item 32 of Sch 1 of the Family Law Amendment Act 2000 (Cth).
In concluding that Pts XIIIA and XIIIB excluded any other power on the part of the Federal Circuit Court to deal with contempt when it was exercising jurisdiction under the Family Law Act, the primary judge relied on R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section[83] where it was held that the conferral on the Arbitration Court of a power to deal with contraventions of its own orders carried with it an implication that the Arbitration Court could not punish such contraventions as a contempt, even though the Arbitration Court was expressly designated as a superior court of record.[84] Metal Trades was an example of the application of the principle stated by Gavan Duffy CJ and Dixon J in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia[85] that "[w]hen the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power".[86]
[83](1951) 82 CLR 208.
[84]Metal Trades (1951) 82 CLR 208 at 254, 259, 265.
[85](1932) 47 CLR 1.
[86]Anthony Hordern& Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7, cited in Metal Trades (1951) 82 CLR 208 at 266.
Even leaving aside that s 17 was found in different legislation from Pts XIIIA and XIIIB, there is no scope to apply the principle in Anthony Hordern to exclude s 17 as a source of authority for the orders made by Judge Vasta on 6 December 2018. On any view, s 17 expanded the ambit of the Federal Circuit Court's powers so that it could punish all forms of contempt in relation to its processes, rather than the limited range of contempts that an inferior court of record could deal with in the absence of a statutory provision to the contrary.[87] Section 17 also ensured that the Federal Circuit Court could impose the same penalties that a superior court could impose for contempt.[88]
[87]See R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 287.
[88]Metal Trades (1951) 82 CLR 208 at 243, 254.
Hence, s 17 expanded the power of a particular court to punish for contempt when it is exercising any jurisdiction conferred on that court. In contrast, Pts XIIIA and XIIIB dealt with contempt (and contraventions of orders) by different courts exercising the same jurisdiction. Thus, the two sets of provisions dealt with different subject matters.[89] The ambit of Pt XIIIA, with all of its restrictions, was not "ostensibly wholly within the ambit of" s 17.[90] To adopt the language of Anthony Hordern, Pt XIIIA – and Pt XIIIB – were not "particular provision[s]" and s 17 was not "generally express[ed]". Further, at least so far as s 112AP in Pt XIIIB was concerned, that provision should not be understood to have imposed limitations and restrictions on the power to punish for contempt conferred by s 17. Instead, s 112AP should be understood as facilitating the exercise of the power to punish for contempt.[91]
[89]Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at 589-590 [61], 592 [70].
[90]Nystrom (2006) 228 CLR 566 at 589 [59].
[91]See Re Colina (1999) 200 CLR 386 at 394-395 [15].
In any event, Anthony Hordern is a principle of construction which, even when applicable, is to be weighed with other applicable principles of construction.[92] Generally, provisions granting powers to courts should not be read down by making implications or imposing limitations which are not found in the express words of the legislation.[93] This principle is applicable even though s 17(2) provided that s 17(1) had "effect subject to any other Act". It is one thing to treat the exercise of the power conferred by s 17 as regulated by Pt XIIIA, and possibly Pt XIIIB, and in that sense "subject to any other Act". It is however quite another to treat s 17 as wholly excluded if Pts XIIIA and XIIIB were engaged.
[92]Nystrom (2006) 228 CLR 566 at 586-587 [54], 589 [59].
[93]Deputy Commissioner of Taxation v Huang (2021) 273 CLR 429 at 445 [23].
To accept that Pts XIIIA and XIIIB of the Family Law Act did not exclude s 17 of the Federal Circuit Court of AustraliaAct as a source of power to punish for contempt, however, is not to accept that the effect of s 17 was to render the Federal Circuit Court a superior court when exercising the power to punish for contempt conferred by s 17.
As noted, relevantly identical provisions confer such power on this Court, the Federal Court and the Family Court.[94] In Re Colina; Ex parte Torney three judges of this Court treated those provisions as "declaratory" of an attribute of the judicial power of the Commonwealth vested in those courts by s 71 of the Constitution as superior courts.[95] Regardless of the effect of those provisions on this Court, the Federal Court and the Family Court, the status of the orders of those courts as valid unless and until set aside flows from the designation of each of them as superior courts of record, and not from the conferral of any power to make a particular order.[96] Thus, if s 24 of the Judiciary Act has no effect upon the status of the orders made by this Court when punishing for contempt, there is no reason why s 17 of the Federal Circuit Court of Australia Act should have any greater effect on the status of such orders when they are made by the Federal Circuit Court.
[94] Judiciary Act, s 24; Federal Court of Australia Act, s 31; Family Law Act, s 35.
[95]Re Colina (1999) 200 CLR 386 at 395 [16] per Gleeson CJ and Gummow J, 429 [113] per Hayne J; cf at 403 [48] per McHugh J, 416 [80] per Kirby J. See also Quick and Groom, The Judicial Power of the Commonwealth with the Practice and Procedure of the High Court (1904) at 76.
[96]Kable (2013) 252 CLR 118 at 134 [34].
Unlike the provisions considered in Day v The Queen, neither s 17, nor any other provision of the Federal Circuit Court of Australia Act, purported to confer "all the jurisdiction" that this Court has in relation to contempt on the Federal Circuit Court. An inferior court that exercises a particular power and jurisdiction of a superior court can itself become a superior court when exercising that particular jurisdiction.[97]
[97]Cameron (1944) 68 CLR 571 at 606, citing Skinner v Northallerton County Court Judge [1899] AC 439 at 441.
In particular, a provision that confers on an inferior court "all the jurisdiction" (emphasis added), as well as the "powers", that a superior court possesses over a particular subject matter can confer on the inferior court the same authority that a superior court possesses to effect a "final quelling of [a] controvers[y]" about that subject matter,[98] including the authority to do so by making an order which remains valid unless and until set aside and invulnerable to collateral challenge.[99] It was authority of that nature which was conferred on the District Court of Western Australia by the provision conferring "jurisdiction" considered in Day v The Queen. As s 17 did not purport to confer all the jurisdiction of this Court to deal with contempt on the Federal Circuit Court, no such authority was conferred either. It follows that this aspect of the appeals by the Commonwealth and Judge Vasta fails.
[98]Kable (2013) 252 CLR 118 at 134 [34] (emphasis omitted).
[99]Kable (2013) 252 CLR 118 at 133 [32], 134 [36].
Further arguments about the effect of s 17
There remain two further arguments concerning s 17 of the Federal Circuit Court of Australia Act to be considered, one advanced by Judge Vasta alone and the other advanced by South Australia.
Judge Vasta argued that s 17 impliedly conferred on him the same judicial immunity applicable to members of this Court in relation to all purported exercises of the power to punish for contempt. Nothing in the text or context of s 17 supports this submission. Just as the statutory power to deal with contempt conferred by s 24 of the Judiciary Act is not a source of immunity for Justices of this Court, s 17 of the Federal Circuit Court of Australia Act did not confer immunity on members of the Federal Circuit Court.
The argument of South Australia was that, even though the imprisonment order was invalid, the warrant issued by Judge Vasta was nevertheless valid and justified Mr Stradford's imprisonment. There was no express power conferred on judges of the Federal Circuit Court to issue warrants. Any power that judges of the Federal Circuit Court had to issue warrants was "confined to so much as can be 'derived by implication'" from the express powers that the Federal Circuit Court had to sentence a person to imprisonment (emphasis added).[100]
[100]Grassby v The Queen (1989) 168 CLR 1 at 17.
South Australia argued that this implied power to issue warrants of commitment should not be limited by a power to issue such warrants only in aid of valid court orders. It suffices to state in response that, given the confined nature of the implied power to issue a warrant of commitment, the power cannot rise above its source in the Federal Circuit Court of Australia Act and the cognate legislation, which only conferred power on the Federal Circuit Court to make valid court orders for the arrest or imprisonment of a person.
Conclusion on this part of the appeals
It follows that the imprisonment order and the warrant were invalid.
Part IV – Did Judge Vasta have immunity from Mr Stradford's suit?
In Fingleton v The Queen[101] Gleeson CJ described the rationale for judicial immunity from civil liability as follows:
"This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour. As O'Connor J, speaking for the Supreme Court of the United States, said in Forrester v White,[102] that Court on a number of occasions has 'emphasi[s]ed that the nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have'. She said that '[i]f judges were personally liable for erroneous decisions, the resulting avalanche of suits ... would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits'.
This does not mean that judges are unaccountable. Judges are required, subject to closely confined exceptions, to work in public, and to give reasons for their decisions. Their decisions routinely are subject to appellate review, which also is conducted openly. The ultimate sanction for judicial misconduct is removal from office upon an address of Parliament. However, the public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions."
[101](2005) 227 CLR 166 at 186 [38]-[39].
[102](1988) 484 US 219 at 226-227.
This justification for judicial immunity by reference to the protection of judicial independence has been long and widely recognised.[103] The protection it provides from litigation by those disappointed with judicial decisions not only provides an institutional protection to the individual judge in performing their judicial duty free of such concerns; the immunity also enhances public confidence in the impartiality of judicial decision making by "foreclos[ing] [even] the assertion that the prospect of suit [against the judge] may have had some conscious or unconscious effect on the decision-making process or its outcome" (emphasis added).[104]
[103]See, eg, Garnett v Ferrand (1827) 6 B & C 611 at 625-626 [108 ER 576 at 581]; Bradley v Fisher (1872) 80 US 335 at 347; Anderson v Gorrie [1895] 1 QB 668 at 670; Pierson v Ray (1967) 386 US 547 at 554; Nakhla v McCarthy [1978] 1 NZLR 291 at 294; Stump v Sparkman (1978) 435 US 349 at 368; Rajski v Powell (1987) 11 NSWLR 522 at 528, 535; Yeldham v Rajski (1989) 18 NSWLR 48 at 69; Harvey v Derrick [1995] 1 NZLR 314 at 324, 336; Rawlinson v Rice [1998] 1 NZLR 454 at 464; Attorney-General v Chapman [2012] 1 NZLR 462 at 466; Praljak v Commonwealth of Australia (Federal Court of Australia) [2022] FCA 1438 at [18]; Singh v Harrowell [2023] NSWSC 420 at [135].
[104]Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 80 [75].
Judicial immunity also exists to achieve finality in the quelling of disputes by the exercise of judicial power.[105] The finality of judicial decisions would be undermined if those disappointed with a decision could bring proceedings against a judge as a means of attacking the judge's decision. The interests of finality of judgments of inferior courts apply equally to judgments of superior courts, albeit that judgments of inferior courts are open to collateral challenge, whereas judgments of superior courts are not.[106] The law's concern to ensure the finality of judicial decisions is satisfied by judges of inferior courts having judicial immunity. The overwhelming proportion of criminal and civil disputes in this country are quelled by decisions of inferior courts. Absent a successful appeal or permissible collateral challenge to a decision, those disputes are resolved to finality. As will be explained, whatever the position was in the past, there is now no basis for contending that the immunity from civil suit of a judge of an inferior court applies only to the extent to which the decision of that judge is not capable of being collaterally challenged.
[105]D'Orta-Ekenaike (2005) 223 CLR 1 at 15 [25].
[106]See above at [53].
The scope of immunity found by the primary judge
The primary judge, having surveyed many of the authorities in the United Kingdom and this country concerning the scope of judicial immunity afforded to inferior court judges, fairly observed that the state of the common law on the topic was "somewhat unsatisfactory".[107]
[107]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [341].
Despite this observation, reflecting the analysis of Lord Bridge of Harwich in In re McC (A Minor)[108] the primary judge held that inferior court judges will not have immunity where they do not have subject matter jurisdiction, regardless of whether they know, or do not know, that they do not have such jurisdiction.[109] The primary judge also held that "in certain exceptional circumstances" when an inferior court judge does have such subject matter jurisdiction, the judge may still not have immunity where the judge makes "an order without, or outside, or in excess of the jurisdiction he or she had to hear or entertain the proceeding".[110] One exceptional circumstance is where the inferior court judge "is guilty of some gross and obvious irregularity in procedure, or a breach of the rules of natural justice, other than an irregularity or breach which could be said to be a merely narrow technical".[111] Another exceptional circumstance is where the inferior court judge acts "in excess of jurisdiction" by making an order or imposing a sentence "for which there [is] no proper foundation in law, because a condition precedent for making that order or sentence had not been made out".[112]
[108][1985] AC 528.
[109]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [343].
[110]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [344].
[111]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [345].
[112]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [346].
The primary judge accepted that Judge Vasta had subject matter jurisdiction in respect of the proceeding between Mr Stradford and Mrs Stradford. His Honour characterised Judge Vasta's conduct as falling within both descriptions of exceptional circumstances.[113] There was no challenge to that characterisation of Judge Vasta's conduct on appeal.
[113]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [359]-[364].
Mr Stradford sought to uphold the primary judge's analysis of the common law. The Commonwealth and Judge Vasta challenged the primary judge's analysis of the scope of judicial immunity of an inferior court judge. Both contended that the common law does not, or should not, recognise any distinction between the scope of the immunity of superior court judges and inferior court judges. The Commonwealth contended in the alternative that, if the common law does recognise such a distinction, the scope of the immunity of inferior court judges should be co-extensive with the subject matter jurisdiction of the court to which they are appointed.
"'Jurisdiction' is an expression which is used in a variety of senses and takes its colour from its context."[114] Neither the primary judge nor the Commonwealth explained the sense in which they used the compound expression "subject matter jurisdiction". The primary judge appears to have used subject matter jurisdiction to mean "jurisdiction over the subject-matter of the action",[115] corresponding in the Australian constitutional context to the authority of the court to adjudicate the particular "matter" in controversy between the parties.[116] The Commonwealth appears to have used the compound expression in a somewhat broader sense to encompass what this Court referred to in Craig v South Australia as the "general area" of the jurisdiction of an inferior court in the course of explaining that "[a]n inferior court would ... act wholly outside the general area of its jurisdiction ... if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge".[117] It will be seen that such imprecision of meaning in the context of judicial immunity is not new. The one thing that is certain is that, in using the compound expression "subject matter jurisdiction" in the context of judicial immunity, neither the primary judge nor the Commonwealth meant "jurisdiction" in the sense used in the context of "jurisdictional error" to refer to all express or implied limits on the decision making authority of a court.[118]
[114]Anisminic Ltd v Foreign Compensation Commission [1968] 2 QB 862 at 889, quoted in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 570 [63]. See also PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240 at 246-247 [14]-[15].
[115]See, eg, Flaherty v Girgis (1987) 162 CLR 574 at 598; Lipohar v The Queen (1999) 200 CLR 485 at 514 [69].
[116]Zurich Insurance Co Ltd v Koper (2023) 277 CLR 164 at 176-177 [33].
[117]Craig v South Australia (1995) 184 CLR 163 at 177; Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 570 [63].
[118]See Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1 at 8 [14]-[15]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at 613 [2]; 418 ALR 152 at 154.
Sirros and In re McC
The primary judge's starting point in considering whether the distinction between superior court judges and inferior court judges as to their immunity has been abolished, or can and should be abolished, was the decision of the Court of Appeal of England and Wales in Sirros v Moore.[119]
[119][1975] QB 118.
In Sirros, a judge of the Crown Court had dismissed an alien's attempt to appeal against a magistrate's recommendation that he be deported. During the hearing of the appeal the appellant was at liberty, but at the appeal's conclusion the judge directed police to detain him. The appellant obtained an order for habeas corpus on the basis that the judge was functus officio at the time of considering the appellant's detention. Lord Denning MR concluded that the judge had no "jurisdiction" to detain the appellant, but he "acted judicially and for that reason no action [would] lie against him".[120]
[120]Sirros v Moore [1975] QB 118 at 137.
Under the heading "[a]cts within jurisdiction", Lord Denning observed:[121]
"Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action."
[121]Sirros [1975] QB 118 at 132.
Lord Denning observed that this applied "not only to judges of the superior courts, but to judges of all ranks, high or low".[122]
[122]Sirros [1975] QB 118 at 132.
Under the heading "[t]he superior courts", Lord Denning noted that judges of superior courts were also immune for acts committed outside their jurisdiction if they were "acting as a judge", "doing a judicial act" or "acting judicially", which Lord Denning took to mean "acting in the bona fide exercise of his office and under the belief that he has jurisdiction".[123] However, Lord Denning observed that for inferior court judges the authorities did not extend any immunity to those who acted outside the jurisdiction that "belonged to [them]".[124] Even so, Lord Denning held that the same rule of immunity should apply to inferior court judges as applied to superior court judges, such that, if either acted outside their jurisdiction, they should not be liable "so long as [they] honestly [believe] it to be within [their] jurisdiction".[125]
[123]Sirros [1975] QB 118 at 135.
[124]Sirros [1975] QB 118 at 133.
[125]Sirros [1975] QB 118 at 136.
One concern that has arisen out of Sirros is that, in seeking to harmonise the scope of the immunity afforded to superior court judges and inferior court judges, Lord Denning appeared to reduce the former so that a superior court judge who acted beyond jurisdiction would only be immune if that judge honestly believed they had acted within jurisdiction.[126] As noted, Lord Denning adopted this formulation as a means of encapsulating the limit on the immunity of a superior court judge in that they must be "doing a judicial act"[127] or "acting judicially".[128]
[126]Sirros [1975] QB 118 at 136. See also Moll v Butler (1985) 4 NSWLR 231 at 241; Rajski v Powell (1987) 11 NSWLR 522 at 529.
[127]Sirros [1975] QB 118 at 135.
[128]Sirros [1975] QB 118 at 135.
The immunity afforded to superior court judges by the common law must have some limit referable to the exercise of their judicial function. Self-evidently, the immunity does not extend to the judge's private acts unrelated to their judicial office,[129] nor could it extend to them attempting to perform the judicial function of a court to which they were not appointed; eg, a probate judge purporting to a try a criminal case.[130] In Forrester v White judicial immunity was found not to extend to the administrative acts of a judge in demoting and dismissing a probation officer.[131] However, it does not follow that, in this country at least, any such limit on judicial immunity should be directly translated to the circumstance of a judge knowingly acting beyond jurisdiction. This is particularly so given the ambiguities surrounding the meaning of "jurisdiction", the fact that all courts in this country are courts of limited jurisdiction,[132] and the potential for the rationale for the immunity to be eroded by an inquiry into the judge's state of mind[133] when quelling a legal controversy. A better formulation would involve an objective inquiry into whether the conduct of the judge could be seen as a purported attempt to exercise the judicial function of the court to which they are appointed.
[129]Rajski v Powell (1987) 11 NSWLR 522 at 528.
[130]Rajski v Powell (1987) 11 NSWLR 522 at 533.
[131]Forrester v White (1988) 484 US 219 at 229.
[132]Kable (2013) 252 CLR 118 at 132 [30].
[133]See below at [110].
The attempt in Sirros to harmonise the scope of the immunity of superior court judges with that of inferior court judges in cases where they both acted outside jurisdiction was rejected by Lord Bridge in In re McC[134] in the course of holding that a statutory exclusion of immunity for acts undertaken by justices of the peace "without jurisdiction or in excess of jurisdiction"[135] gave effect to "the old common law rule that justices were civilly liable for actionable wrongs suffered by citizens pursuant to orders made without jurisdiction".[136] His Lordship held that the immunity was excluded not only in cases where there was an absence of "jurisdiction of the cause", but also when, in hearing a case otherwise within such jurisdiction, justices committed "some gross and obvious irregularity of procedure".[137] He gave as examples of such an irregularity of procedure when one justice was absent for part of the hearing,[138] or when the conviction of the defendant or determination of the complaint did "not provide a proper foundation in law for the sentence imposed on him or order made against him".[139] Otherwise, Lord Bridge left open "for determination ... other more subtle cases" involving a procedural irregularity or a breach of natural justice, which "would not ... necessarily expose the justices to liability in damages".[140]
[134][1985] AC 528 at 541.
[135]See Justices Protection (Ireland) Act 1849 (UK) (12 & 13 Vict c 16), s 2; Justices Protection Act 1848 (UK) (11 & 12 Vict c 44); Justices of the Peace Act 1979 (UK), s 45. See also In re McC [1985] AC 528 at 535.
[136]In re McC [1985] AC 528 at 541.
[137]In re McC [1985] AC 528 at 546.
[138]In re McC [1985] AC 528 at 546-547.
[139]In re McC [1985] AC 528 at 549.
[140]In re McC [1985] AC 528 at 547.
Judicial immunity in this Court since Sirros
After Sirros, in Durack v Gassior[141] and then Gallo v Dawson,[142] single Justices of this Court applied Sirros in the context of an application for summary dismissal of a claim against a judge of a superior court. Durack involved a complaint that a judge of the Family Court had wrongly imprisoned a litigant for contempt. Gallo was a complaint of discrimination against a judge of this Court.
[141]Unreported, High Court of Australia, 13 April 1981.
[142](1988) 63 ALJR 121 at 122; 82 ALR 401 at 402.
In Durack Aickin J observed that "no action may be brought under our legal system against judges for acts done in the course of hearing or deciding cases which come before them".[143] In Gallo Wilson J described the civil immunity of a judge of this Court as extending to conduct of the judge "undertaken in the performance of his judicial duties".[144] McHugh J refused an extension of time for leave to appeal from the judgment of Wilson J on the basis that his Honour was "unquestionably correct".[145] An appeal from McHugh J's refusal to a Full Bench of this Court was dismissed on the basis that Wilson J was clearly correct in concluding that the appellant's case must fail by reason of "judicial immunity applying to acts done by a judge in the course of the performance of judicial duties".[146]
[143]Durack v Gassior (unreported, High Court of Australia, 13 April 1981) at 15.
[144]Gallov Dawson (1988) 63 ALJR 121 at 122; 82 ALR 401 at 402.
[145]Gallo v Dawson (1990) 64 ALJR 458 at 460; 93 ALR 479 at 482.
[146]Gallo v Dawson (1992) 66 ALJR 859 at 859; 109 ALR 319 at 320.
In Re East; Ex parte Nguyen this Court rejected the contention that a magistrate and the Chief Judge of the County Court of Victoria could be subject to "legal redress" on the ground that they contravened the Racial Discrimination Act 1975 (Cth) in their conduct of criminal proceedings.[147] This Court held that the magistrate and Chief Judge were entitled to the "well established immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function of capacity".[148] In reaching this conclusion, this Court cited Rajski v Powell,[149] which described the immunity of superior court judges from civil liability in the same terms.[150]
[147]Re East (1998) 196 CLR 354.
[148]Re East (1998) 196 CLR 354 at 365-366 [30].
[149](1987) 11 NSWLR 522.
[150]Rajski v Powell (1987) 11 NSWLR 522 at 527.
Mr Stradford noted that there was no discussion in Durack, Gallo or Re East of the difference between the scope of judicial immunity afforded to superior court and inferior court judges. Regarding Re East, Mr Stradford submitted that, had such an issue been raised, it would have been affected by various legislative provisions that gave the magistrate and Chief Judge the immunity of a Supreme Court judge.[151]
[151]See, eg, County Court Act 1958 (Vic), s 9A; Magistrates Court Act 1987 (Tas), s 10A; Magistrates' Court Act 1989 (Vic), s 14; Magistrates Court Act 1991 (SA), s 44(1); District Court Act 1991 (SA), s 46(1).
None of Durack, Gallo or Re East purported to abolish the distinction between inferior court judges and superior court judges. Instead, those cases treated that distinction as immaterial to the issue of judicial immunity and for good reason. In Fingleton Gleeson CJ noted the "strong criticism" of the distinction between inferior court judges and superior court judges in Sirros and In re McC.[152] Similarly, Kirby J referred to the "artificial distinctions ... between judicial officers at different ranks in the hierarchy", citing, inter alia, Sirros.[153]
[152]Fingleton (2005) 227 CLR 166 at 184 [34].
[153]Fingleton (2005) 227 CLR 166 at 214 [137], citing Sirros [1975] QB 118 at 134-136.
D'Orta-Ekenaike and the status of In re McC
In D'Orta-Ekenaike v Victoria Legal Aid[154] Gleeson CJ, Gummow, Hayne and Heydon JJ noted the existence of various immunities from suit that are designed to achieve finality in the quelling of disputes by the exercise of judicial power.[155] In relation to judicial immunity, their Honours observed:[156]
"[Judicial immunity] was bound up with the development of the law relating to excess of jurisdiction, and thus with the development of the principles governing when a judicial decision was open to collateral attack. Its history has been traced by Holdsworth. It is not necessary to examine that history in any detail, beyond noticing that the decisions of courts of record were conclusive, but those of inferior courts were open to collateral attack alleging excess of jurisdiction. Hence, while action might lie at common law for acts done in an inferior court in excess of jurisdiction, the decisions of supreme courts were final. And there was an immunity from suit for any judicial act done within jurisdiction. What is important to notice for present purposes is not the history of development of this immunity, but that both judicial immunity and the immunity of witnesses were, and are, ultimately, although not solely, founded in considerations of the finality of judgments." (emphasis added)
[154](2005) 223 CLR 1.
[155]D'Orta-Ekenaike (2005) 223 CLR 1 at 15 [25].
[156]D'Orta-Ekenaike (2005) 223 CLR 1 at 19 [40] (citations omitted); see also Forge (2006) 228 CLR 45 at 80 [75].
This passage correlates the development in the United Kingdom of the principles governing "excess of jurisdiction" and collateral challenges to judicial decisions on the one hand with the scope of judicial immunity of members of those courts whose decisions were vulnerable to such a challenge on the other. This correlation was explained by both Buckley LJ in Sirros[157] and the article by Professor Holdsworth[158] cited in D'Orta-Ekenaike. This correlation is of particular relevance to Mr Stradford's reliance on various authorities from the United Kingdom.
[157]Sirros [1975] QB 118 at 138-139.
[158]Holdsworth, “Immunity for Judicial Acts” [1924] Journal of the Society of Public Teachers of Law 17.
According to Professor Holdsworth, at least until the end of the 16th century, the common law did not distinguish between courts of record, either superior or inferior. Judges of all such courts had immunity when they acted within jurisdiction and did not have immunity when acting outside of it.[159] However, Professor Holdsworth concluded that, from the latter part of the 17th century, a difference emerged about the scope of the immunity afforded to judges of superior and inferior courts. During this time it was accepted that superior courts had unlimited jurisdiction and were seen as only answerable to the "God and the king", whereas inferior courts were restricted by subject matter, person, or place, and answerable to superior courts if they acted beyond jurisdiction.[160]
[159]Holdsworth, “Immunity for Judicial Acts” [1924] Journal of the Society of Public Teachers of Law 17 at 19-20.
[160]Holdsworth, “Immunity for Judicial Acts” [1924] Journal of the Society of Public Teachers of Law 17 at 20.
The parties and the primary judge referred to numerous cases in the United Kingdom and this country concerning the scope of the immunity so far as it concerns inferior court judges. There are many cases that described the scope of judicial immunity in terms that corresponded to subject matter jurisdiction in the sense in which that expression was used by the primary judge, such as jurisdiction over or in respect of particular persons,[161] locale,[162] the kinds of relief that may be granted,[163] or all three.[164] However, as Mr Stradford submitted, there are other decisions, including In re McC itself, that held a judge or justice of the peace liable in circumstances where the court had such jurisdiction but some precondition to the making of the order that imprisoned the aggrieved litigant was not established.[165] He submitted that his case was a "simple application" of those cases.
[161]The Case of the Marshalsea (1612) 10 Co Rep 68b at 68b [77 ER 1027 at 1027]; Calder v Halket (1840) 3 Moo PC 28 at 57 [13 ER 12 at 27].
[162]Houlden v Smith (1850) 14 QB 841 [117 ER 323].
[163]"[A]djudication of the kind it purported to make": Raven v Burnett (1894) 6 QLJ 166 at 168; Agnew v Jobson (1877) 13 Cox CC 625.
[164]Raven (1894) 6 QLJ 166; see also Garthwaite v Garthwaite [1964] P 356 at 387.
[165]See, eg, Hill v Bateman (1726) 2 Str 710 [93 ER 800]; Groome v Forrester (1816) 5 M & S 314 [105 ER 1066]; Wood v Fetherston (1901) 27 VLR 492; M'Creadie v Thomson 1907 SC 1176; O'Connor v Isaacs [1956] 2 QB 288; R v Manchester City Magistrates' Court; Ex parte Davies [1989] QB 631.
Part of the first ground of appeal of each of Judge Vasta and the Commonwealth was that s 17 of the Federal Circuit Court of Australia Act 1999 (Cth) was a source of power for the declaration of contempt and imprisonment order made by Judge Vasta, rendering the declaration and order, and the warrant issued in support of the order, valid until set aside. This ground was treated as a ground of appeal that was anterior to other grounds concerning defences of justification relied on by Judge Vasta, the correctional officers, the police officers, and the MSS Guards. But it is the common law defences of justification that are the anterior issues; those defences also inform the content of s 17.
In The Case of the Marshalsea,[605] Sir Edward Coke said that although a person might read the words in a statute, that person "will never know the true reason of the interpretation of them" unless they know "what the law was before the making of them". It is essential to an understanding of s 17 of the Federal Circuit Court of Australia Act to appreciate, from the development of the common law defences of justification for judicial officers and those executing judicial orders, that terms such as "void" and "nullity" can be dangerously misleading when used to describe the effect of court orders.
[605](1612) 10 Co Rep 68b at 73a [77 ER 1027 at 1033].
The effect of s 17 was not to reinstate the historical anachronism by which the orders of inferior courts were sometimes said to be void, nullities, or of no legal effect. Nor was it to reverse a century and a half of authority, with the exception of the limited authority which was referred to but not the subject of any pursued argument in Pelechowski, that orders of all courts are binding until set aside. And, most fundamentally for these appeals, it did not reverse the now established and principled position that the order of any court, which purports to be an exercise of the authority of the court, is sufficient to justify conduct which would otherwise amount to a tort if the order had no legal effect, with the justification extending to the judicial officer who made the order and any other officer whose duty it was to enforce the order and who was required by the court to do so.
(i) The history of s 17 and equivalent provisions
In 1903, the Judiciary Act provided in s 24 that the "High Court shall have the same power to punish contempts of its power and authority as is possessed at the commencement of this Act by the Supreme Court of Judicature in England".
The text of s 24, and the power that it conferred on this Court, was used as a model for the Commonwealth Court of Conciliation and Arbitration. In 1951,[606] s 29A was added to the Conciliation and Arbitration Act 1904-1950 (Cth) to give the Court of Conciliation and Arbitration "the same power to punish contempts of its power and authority, whether in relation to its judicial powers and functions or otherwise, as is possessed by the High Court in respect of contempts of the High Court".
[606]Conciliation and Arbitration Act (No 2) 1951 (Cth), s 7.
A bill seeking to enact s 29A was first introduced into the House of Representatives in March 1951, but lapsed as it was not passed by the Commonwealth Parliament prior to the federal election in April 1951. A second bill, which was relevantly identical to the first bill, was then introduced into the House of Representatives in June 1951, and passed by both Houses of Parliament in September 1951. In the second reading speech for each of these two bills, the Minister for Labour and National Service and Minister for Immigration, Mr Holt, explained the history behind the introduction of s 29A.[607] That history was as follows. In 1947, the Commonwealth had legislated to make the Court of Conciliation and Arbitration a "Superior Court of Record" for the first time.[608] The constitution of the Court of Conciliation and Arbitration as a "Superior Court of Record" occurred because this Court had held in John Fairfax & Sons Pty Ltd v Morrison[609] that the Court of Conciliation and Arbitration, not being a "superior court of record", had only the "particular power" to punish for contempt that had been conferred on it by statute, being "the power of a superior court of record to punish by attachment and committal any person whom it finds to have been guilty of contempt of the court", but not the power to punish by fine.[610] Specific statutory provisions dealing with the power of the Court of Conciliation and Arbitration to punish for contempt were necessary because of an earlier decision of this Court, which held that the Court of Industrial Arbitration of New South Wales, being an "inferior ... Court of record", had only the power to respond to contempts that occurred "in the face of the Court" and not to contempts that occurred outside the Court.[611] But, despite the creation of the Court of Conciliation and Arbitration as a "Superior Court of Record" by the Commonwealth Conciliation and Arbitration Act 1904-1947 (Cth) ("the 1947 Act") as amended, in 1951 a majority of this Court held that the specific provisions concerning contempt that had been included in the 1947 Act (which had replaced the contempt provision considered by this Court in John Fairfax & Sons Pty Ltd v Morrison) had effectively codified the rules concerning contempt and had therefore excluded what was thought to be the common law jurisdiction of a superior court of record concerning contempt.[612]
[607]Australia, House of Representatives, Parliamentary Debates (Hansard), 7 March 1951 at 66-67; Australia, House of Representatives, Parliamentary Debates (Hansard), 29 June 1951 at 729-730.
[608]Commonwealth Conciliation and Arbitration Act 1947 (Cth), s 8.
[609][1945] ALR 297 at 298.
[610]See Australia, House of Representatives, Parliamentary Debates (Hansard), 7 March 1951 at 66-67; Australia, House of Representatives, Parliamentary Debates (Hansard), 29 June 1951 at 730; R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 243.
[611]Master Undertakers' Association of New South Wales v Crockett (1907) 5 CLR 389 at 392.
[612]R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 256, 259, 265-266.
Section 29A was therefore a response to this Court's decision in 1951. In introducing the first iteration of the bill which sought to introduce s 29A of the Conciliation and Arbitration Act, Mr Holt explained that despite this Court's decision to the contrary, when the 1947 Act had created the Court of Conciliation and Arbitration as a superior court of record, "[c]learly, the underlying idea ... was that the court should have all the inherent powers to punish for contempt that flowed at common law from its declared status as a superior court of record".[613] Since a majority of this Court had held that such powers had not been conferred by the 1947 Act, the powers were then granted by the new s 29A, which was described as providing "that the Arbitration Court shall be clearly vested with all the inherent powers of a superior court of record notwithstanding the existence of other means of enforcement of its orders and awards".[614] In short, s 29A, in materially the same terms as s 17 of the Federal Circuit Court of Australia Act, was inserted for exactly the same reason that s 17 was inserted: to avoid other specific contempt provisions being treated as a code and to ensure that the Court functioned in every respect, in relation to contempt, in accordance with the prevailing understanding of the powers of a superior court of record.
[613]Australia, House of Representatives, Parliamentary Debates (Hansard), 7 March 1951 at 67. See also R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 293.
[614]Australia, House of Representatives, Parliamentary Debates (Hansard), 7 March 1951 at 67.
In R v Kirby; Ex parte Boilermakers' Society of Australia,[615] a majority of this Court held that the legislation that constituted the Commonwealth Court of Conciliation and Arbitration was invalid because it combined administrative and judicial power in that Court. Nevertheless, the form of s 29A from 1951 provided the model for ensuring that other courts obtained the same contempt powers as a "superior court of record" such as the High Court. For instance, in 1975 the Family Law Act 1975 (Cth) provided in s 35 that the Family Court (constituted also as a "superior court of record"[616]) "has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court". And in 1976, the Federal Court of Australia Act 1976 (Cth) provided in s 31(1) that the Federal Court (also described as a "superior court of record"[617]) had "the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court", with additional provision being made to permit the Court as constituted at the time of the contempt to punish a contempt of the Court committed in the face or hearing of the Court.[618]
[615](1956) 94 CLR 254.
[616]Family Law Act 1975 (Cth), s 21(2).
[617]Federal Court of Australia Act 1976 (Cth), s 5(2).
[618]Federal Court of Australia Act 1976 (Cth), s 31(2).
In Re Colina; Ex parte Torney,[619] Gleeson CJ and Gummow J described provisions such as s 24 of the Judiciary Act and s 35 of the Family Law Act "as declaratory of an attribute of the judicial power of the Commonwealth which is vested in those Courts by s 71 of the Constitution". In other words, the statutory provisions concerning contempt merely declared the pre-existing power of those Courts, which is "a power of self-protection or a power incidental to the function of superintending the administration of justice".[620] The expression "self-protection" was that of Parke B in Beaumont v Barrett,[621] who described the contempt powers of the Houses of Parliament in that way, adding that the "right of self-protection implies, as a consequence, a right to use the necessary means for rendering such self-protection effectual ... [which requires] a competent authority to enforce the free and independent exercise of its own proper functions, whatever these functions might be".
[619](1999) 200 CLR 386 at 395 [16]. See also at 429 [113].
[620]Re Colina; Ex parte Torney (1999) 200 CLR 386 at 395 [16], quoting Porter v The King; Ex parte Yee (1926) 37 CLR 432 at 443.
[621](1836) 1 Moo PC 59 at 77 [12 ER 733 at 740]. See Porter v The King; Ex parte Yee (1926) 37 CLR 432 at 443-444.
The same reasoning must apply to s 31(1) of the Federal Court of Australia Act despite the Federal Court being a statutory court of limited jurisdiction, and although this Court has supervisory jurisdiction over the Federal Court. The Federal Court was created under s 73 of the Constitution and exercises the judicial power of the Commonwealth under s 71 of the Constitution. It is true that the jurisdiction to punish criminal contempt has been described in this Court as an "inherent jurisdiction" of a "superior court".[622] But that reasoning, quoting from Lord Halsbury (who saw "superior courts" as courts of universal jurisdiction[623]), uses the misleading language of "inherent jurisdiction", a concept which, when used in relation to the powers of a court, means "such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred".[624]
[622]R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 241.
[623]Above at [237].
[624]Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at 263-264 [5], quoting Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 590 [64], which in turn quotes Harris v Caladine (1991) 172 CLR 84 at 136, which in turn quotes Parsons v Martin (1984) 5 FCR 235 at 241.
This conclusion about the power of the Federal Court to punish for contempt, notwithstanding this Court's ability to issue constitutional writs to the Federal Court, can be reached without assessing the correctness of the proposition that this Court's "power to issue mandamus and certiorari" means that this Court could also punish contempts of lower courts on the assumption that these powers are "in truth but different aspects of the same function—the traditional general supervisory function of the King's Bench, the function of seeing that justice was administered and not impeded in lower tribunals".[625]
[625]John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 363. See also at 365. cf R v Fletcher; Ex parte Kisch (1935) 52 CLR 248 at 256-257 in relation to "inferior Courts of a State".
The same reasoning should also apply to any other federal court created to exercise the judicial power of the Commonwealth under s 71 of the Constitution. Nothing in s 71 or s 77 of the Constitution provides any basis for a submission that there can be two systems of justice in federal courts, with an "inferior" system of federal courts which do not have the same power of self-protection, or power incidental to the function of superintending the administration of justice, as that held by "superior courts".
(ii) The terms of s 17 and related provisions
In 1999, at the establishment of the Federal Magistrates Court[626] (which later became the Federal Circuit Court of Australia, with a corresponding change to the title of the Federal Magistrates Act 1999 (Cth)[627]), and at all relevant times since, s 17 of the Federal Circuit Court of Australia Act provided as follows, in terms nearly identical to those of s 31(1) of the Federal Court of Australia Act:
"Contempt of court
(1) The Federal Circuit Court of Australia has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.
(2) Subsection (1) has effect subject to any other Act.
(3) The jurisdiction of the Federal Circuit Court of Australia to punish a contempt of the Federal Circuit Court of Australia committed in the face or hearing of the Federal Circuit Court of Australia may be exercised by the Federal Circuit Court of Australia as constituted at the time of the contempt.
Note: See also section 112AP of the Family Law Act 1975, which deals with family law or child support proceedings."
[626]Federal Magistrates Act 1999 (Cth), s 8(1).
[627]See Federal Circuit Court of Australia Legislation Amendment Act 2012 (Cth), Sch 1, items 1 and 90.
Section 112AP, to which s 17 refers, is the only provision of Pt XIIIB of the Family Law Act. That Part is entitled "Contempt of court". Section 112AP concerns contempt of "a court having jurisdiction under this Act", and it applies "[i]n spite of any other law".[628] The sanctions for contempt by a natural person, pursuant to s 112AP, include "committal to prison or fine or both".[629]
[628]Family Law Act 1975 (Cth), s 112AP(2).
[629]Family Law Act 1975 (Cth), s 112AP(4).
As the Federal Circuit Court of Australia was a court having jurisdiction under the Family Law Act,[630] s 112AP applied to the Federal Circuit Court. However, s 112AP only extends to a contempt that is not "a contravention of an order under [the Family Law Act]" or which "constitutes a contravention of an order under [the Family Law Act] and involves a flagrant challenge to the authority of the court".[631]
[630] Family Law Act 1975 (Cth), s 39(1A).
[631]Family Law Act 1975 (Cth), s 112AP(1).
Part XIIIA of the Family Law Act provides for other "[s]anctions for failure to comply with orders, and other obligations, that do not affect children". Within Pt XIIIA, s 112AD(1) provides power for "a court having jurisdiction under [the Family Law Act]", which included the Federal Circuit Court, to impose various sanctions[632] if the court "is satisfied that a person has, without reasonable excuse, contravened an order under [the Family Law Act]". Some of those sanctions are subject to jurisdictional conditions. For instance, a sentence of imprisonment cannot be imposed "unless the court is satisfied that the contravention was intentional or fraudulent"[633] and that "in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention" by any other available sanction.[634] Further, the period of imprisonment cannot exceed 12 months.[635]
[632]See Family Law Act 1975 (Cth), ss 112AD(2), 112AE, 112AF, 112AG.
[633]Family Law Act 1975 (Cth), s 112AD(2A).
[634]Family Law Act 1975 (Cth), s 112AE(2).
[635]Family Law Act 1975 (Cth), s 112AE(1).
(iii) The operation of s 17
The starting point for consideration of the operation of s 17 is Mr Stradford's argument that s 17 was inapplicable to the exercise of power by Judge Vasta because Pts XIIIA and XIIIB of the Family Law Act were an "exhaustive code". Mr Stradford went so far as to assert that such a conclusion was "hardly surprising" and that otherwise the "detailed scheme" of those Parts of the Family Law Act would "be readily swept away", and, specifically, s 112AP(1) would be "otiose". Those submissions should not be accepted.
The scheme of Pts XIIIA and XIIIB of the Family Law Act differs from the exhaustive provisions concerning contempt in the Commonwealth Conciliation and Arbitration Act 1904-1949 (Cth) which a majority of this Court held, in 1951, to have left no room for the operation of the general powers of contempt of a "superior court".[636] There is no conflict between s 17 of the Federal Circuit Court of Australia Act and Pts XIIIA and XIIIB of the Family Law Act that requires s 17 to be made subject to Pts XIIIA and XIIIB.[637] This is so for three reasons.
[636]R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 256, 259, 265-266.
[637]See Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 580, fn 195.
First, s 17 of the Federal Circuit Court of Australia Act was not contained in the Family Law Act. There is nothing in any provision in Pt XIIIA or Pt XIIIB from which any inference could be drawn that Parliament intended to exclude other contempt powers of a court exercising jurisdiction under the Family Law Act. Indeed, when those Parts were introduced, the general contempt power of the Family Court, in s 35 of the Family Law Act, was deliberately retained.[638] Secondly, the subject matter of s 17 of the Federal Circuit Court of Australia Act was different from that of Pts XIIIA and XIIIB of the Family Law Act. Section 17 was concerned with the powers of the Federal Circuit Court when exercising any of "its power and authority". Section 17 was unconstrained by any express jurisdictional pre-conditions and did not make available a range of statutory orders. By contrast, Pts XIIIA and XIIIB are concerned with the power and authority of any court exercising jurisdiction under the Family Law Act. Those Parts provide for a range of statutory orders that can be made following a finding of contempt, with various jurisdictional conditions. It is unnecessary to determine on these appeals the extent to which any of the jurisdictional pre-conditions for an order of imprisonment for contempt were established. Thirdly, and most fundamentally, as explained below, s 17 was a declaration of existing power rather than a conferral of power.
[638]cf Australian Law Reform Commission, Contempt, Report No 35 (1987) at 366-368 [630]-[632].
The issue then is the relevant operation of s 17. The Commonwealth submitted that s 17(1) was "an express statutory indication that, for the purpose of punishing contempts, the orders of the [Federal] Circuit Court were to be treated in the same way as those of this Court". By contrast, Mr Stradford submitted that s 17 operated only to ensure that the Federal Circuit Court had the power to deal with all types of contempt, not merely contempt in the face of the court to which it had been thought that inferior courts were confined.[639]
[639]Above at [296].
The submission of the Commonwealth should be accepted and that of Mr Stradford rejected. Section 17 of the Federal Circuit Court of Australia Act, like the substantively identical s 35 of the Family Law Act and s 31(1) of the Federal Court of Australia Act, was, as Gleeson CJ and Gummow J described in Re Colina; Ex parte Torney,[640] "declaratory of an attribute of the judicial power of the Commonwealth which is vested in those Courts by s 71 of the Constitution". As explained in Part II and Part III of these reasons, to the extent that any historical English distinction between "superior courts" and "inferior courts" survived Federation, that distinction no longer existed, and could not have been part of a declaration of judicial power in 1999 when s 17 was enacted. English courts had recognised for more than 150 years that orders of any court made with jurisdictional error could have legal effect, regardless of whether the court was a superior court or an inferior court. But, even if the historical English distinction between superior courts and inferior courts were transplanted to Australia, it could not exist at the level of the judicial power of the Commonwealth, which does not distinguish between different types of justice. In that sense, Judge Vasta was correct in his submission that an implication in s 17 was that the "immunities" of judicial officers of the Federal Circuit Court and the Family Court (courts with the same process of judicial appointment, the same judicial tenure, and even the prospect of dual appointment of a judge) were identical.
[640](1999) 200 CLR 386 at 395 [16]. See also at 429 [113].
Section 17 was thus declaratory of the fact that any remaining anachronism of a different effect of orders for contempt between superior courts and inferior courts had been consigned to the dustbin of history. Since that effect would have occurred even without s 17, there is no merit in attempts to draw fine distinctions between provisions such as s 17 and other provisions that use the expression "the Court has all the jurisdiction and powers that the Supreme Court has in respect of any indictable offence".[641] The effect is that an order of an inferior court (even one made with jurisdictional error) is usually sufficient authority for its own execution.
[641]District Court of Western Australia Act 1969 (WA), s 42(1), considered in Day v The Queen (1984) 153 CLR 475 at 479.
V. Application of the principles to these appeals
None of the facts underlying these appeals were in dispute in this Court. On 6 December 2018, Mr Stradford and Mrs Stradford appeared at a hearing in the Federal Circuit Court of Australia concerning their matrimonial dispute. The judge presiding at the hearing, Judge Vasta, informed Mr Stradford that Judge Turner had determined that Mr Stradford was in contempt of disclosure orders that Judge Vasta had previously made. Judge Vasta did not invite Mr Stradford to admit or deny the allegation of contempt. Judge Vasta did not invite Mr Stradford to state his defence to the allegation of contempt. Judge Vasta heard no evidence in relation to the allegation. Judge Vasta did not give Mr Stradford the opportunity to make submissions in defence of the allegation. Indeed, a note recorded that the police had been summoned during an adjournment of Judge Vasta's hearing, prior to any submissions from Mr Stradford that might have been invited at the resumed hearing. And Judge Vasta made no finding that the allegation had been established.
Judge Vasta made a declaration that Mr Stradford was in contempt of various orders by Mr Stradford's failure to make full and frank disclosure. His Honour ordered that Mr Stradford "be sentenced to a period of imprisonment ... of twelve (12) months, to be served immediately with [Mr Stradford] to be released from prison on 6 May 2019, with the balance of the sentence to be suspended for a period of two (2) years". Judge Vasta concluded by saying:
"I will sign the warrant that will commit Mr [Stradford] to prison and the [Queensland Police Service] officers will arrive soon to take him to prison. In the meantime, security, you will have to escort Mr [Stradford] to the cell downstairs to await the officers to come and take him to prison."
Two of the MSS Guards present in the courtroom complied with Judge Vasta's direction by escorting Mr Stradford to a holding cell in the court complex and supervising Mr Stradford while he was detained there. Also on 6 December 2018, Judge Vasta signed a warrant of commitment, attaching the order, directing persons including federal and State police officers to deliver Mr Stradford to the Commissioner of the Queensland Corrective Services, and directing the Commissioner of the Queensland Corrective Services to receive Mr Stradford into custody. Officers of the Queensland Police Service subsequently took Mr Stradford, in handcuffs, to the Roma Street Watchhouse from where he was later transferred to the Brisbane Correctional Centre and detained by officers of the Queensland Corrective Services.
On 12 December 2018, following an application by Mr Stradford (who had obtained legal representation), Judge Vasta stayed the imprisonment order that he had made on 6 December 2018, pending appeal. He ordered that Mr Stradford be forthwith released from custody pending the outcome of an appeal from his judgment. On 15 February 2019, judgment was given on the appeal, unanimously allowing the appeal and setting aside Judge Vasta's declaration and order for imprisonment.
There was no dispute on these appeals that the order for imprisonment made by Judge Vasta, and the consequential warrant that his Honour issued, were the result of a number of jurisdictional errors. It suffices to say that the jurisdictional errors found by the primary judge, and which were properly not disputed in this Court in light of the circumstances described above, included the following. First, Judge Vasta lacked power to make the imprisonment order because he had not made any necessary anterior finding as to conduct that enlivened a power to punish for contempt, such as a finding of a breach of a court order by Mr Stradford.[642] Secondly, Judge Vasta denied Mr Stradford procedural fairness by "act[ing] in a thoroughly unsatisfactory and unjudicial manner".[643] Thirdly, Judge Vasta was affected by actual bias since "nothing that Mr Stradford could have said or done could have diverted the Judge from imprisoning him for the contempt that the Judge had either assumed or believed he had committed".[644]
[642]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [81].
[643]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [118].
[644]Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 at [134]-[135].
There was no dispute before the primary judge, and none on these appeals, that Mr Stradford was involuntarily detained pursuant to the order made and warrant issued by Judge Vasta, and by the acts of the MSS Guards, the officers of the Queensland Police Service, and the officers of the Queensland Corrective Services. The officers of the Queensland Police Service and the officers of the Queensland Corrective Services were required to comply with the imprisonment order, being named in the warrant and commanded to take custody of Mr Stradford. The MSS Guards were also required to comply with the instruction by Judge Vasta to "escort Mr [Stradford] to the cell downstairs to await the officers to come and take him to prison". The terms of the agreement between MSS Security Pty Ltd and the Commonwealth required MSS Guards to perform duties including "[i]n court guarding as directed". Subject to any justification, the primary judge was correct to conclude that each of Judge Vasta, the MSS Guards, the officers of the Queensland Police Service, and the officers of the Queensland Corrective Services were liable for the tort of false imprisonment.
The entirety of these appeals therefore reduces to the simple point of whether the imprisonment order made by Judge Vasta was capable of providing that justification. Although the imprisonment order was the result of jurisdictional errors, for the reasons explained in Parts I to III of these reasons, and contrary to the language of some earlier authority, a judicial order that is made with jurisdictional error is not generally a nullity and is not generally devoid of any legal effect. In the integrated Australian legal system, a judicial order made by any court (whether or not the court is described by the historically problematic labels of "superior" or "inferior") cannot generally be ignored by the parties before the court or by those who are required to comply with the order. The order can justify the actions of those who are required to comply with it. As explained in Part IV of these reasons, s 17 of the Federal Circuit Court of Australia Act was declaratory of that legal position. Contrary to the submission of the Attorney-General for South Australia, the warrant issued by Judge Vasta could not be a separate source of justification in circumstances where the warrant had no statutory basis, or other legal source of validity, independent of the order of the Federal Circuit Court.
On these appeals, Mr Stradford did not submit that, given the circumstances in which they were created, the imprisonment order made, and the consequential warrant issued, by Judge Vasta did not even purport to be exercises of the authority of the Federal Circuit Court. Mr Stradford did not deny that each of the MSS Guards, the officers of the Queensland Police Service, and the officers of the Queensland Corrective Services were acting as required by the Court and in the course of their duties in detaining Mr Stradford. Since it is irrelevant that the order was made, and the consequential warrant was issued, by an inferior court, and since the order had not been set aside during the period of Mr Stradford's detention, the order justified the detention of Mr Stradford, and therefore justified the actions of the MSS Guards, the officers of the Queensland Police Service, and the officers of the Queensland Corrective Services in executing the warrant. The order precluded a finding that they or Judge Vasta had committed the tort of false imprisonment.
VI. Conclusion
Iudex qui litem suam fecit. Two millennia ago, this was the mysterious quasi-delict in Roman law of "the judge who made the case their own". The Institutes of Gaius and Justinian are "surprisingly silent as to the conduct which amounted to or resulted in a judge 'making the case [their] own'".[645] That quasi-delict, and its equivalent in English and Australian law, has been a puzzle for two millennia. When is a judicial officer liable for the consequences of their actions?
[645]Descheemaeker, The Division of Wrongs: A Historical Comparative Study (2009) at 81.
The modern answer is that a judicial officer owes the same duties as all other members of society. However, the authority of a judicial officer can provide them, and those who are required by the court to enforce a judicial order, with a defence of justification for acts that would otherwise be wrongful. Provided that the order purports to be an exercise of judicial authority, even if the order is later set aside on the basis of jurisdictional error, that order was not a nullity at the time it was made. The order must be obeyed by the parties until it is set aside and it can provide a defence of justification for those who are required by the court to give effect to the order such as police officers, correctional officers, and contracted guards. Centrally to these appeals, this conclusion does not change merely because the court is described by old English labels, which should have been abolished long ago in Australia, of "inferior court" or "superior court".
In each matter, orders should be made as proposed by Gageler CJ, Gleeson, Jagot and Beech-Jones JJ.
STEWARD J. I respectfully and gratefully agree with the reasons of Gordon J that s 17 of the Federal Circuit Court of Australia Act1999 (Cth) applied here to ensure the validity of the orders made by Judge Vasta until they were set aside. I do so for the reasons expressed by her Honour. I also agree, for the reasons given by Gordon J, that Pts XIIIA and XIIIB of the Family Law Act1975 (Cth) did not create a code that excluded here the application of s 17. Finally, and again for the reasons given by Gordon J, I also agree that Judge Vasta enjoyed common law immunity in relation to the orders made in respect of Mr Stradford. Those conclusions are sufficient to dispose of these appeals.
If it were necessary to do so, I would also have agreed with the conclusion of Edelman J that Australian law no longer recognises any distinction between so-called "superior courts" and "inferior courts". Edelman J is correct to conclude that such a distinction is an historical anachronism. The reasons given by his Honour are scholarly and compelling.
One further observation should be made which bears out the conclusion reached by Edelman J. Anyone familiar with the work of what was formerly the Federal Circuit Court of Australia, and what is now Division 2 of the Federal Circuit and Family Court of Australia, should acknowledge that the judges of that Court decide cases of great complexity; indeed, usually the complexity is equal to that faced by the judges of the Federal Court of Australia and of what was formerly the Family Court of Australia, traversing the same subject matters, such as family law, industrial law, migration and bankruptcy. Those cases are resolved at a standard of judicial skill which is expected to be equivalent to that displayed by the judges of the Federal Court and the former Family Court. Anyone reviewing the judgments of the Federal Circuit Court would see that this standard is ordinarily met. That is not to say that the judgments are never affected by error. But no judge ever attains such an immaculate standard. Given the foregoing, it simply makes no sense to describe the Federal Circuit Court as an "inferior court".
In each appeal I otherwise agree with the orders proposed by Gageler CJ, Gleeson, Jagot and Beech-Jones JJ.
Queensland v Mr Stradford (a pseudonym) [2025] HCA 3
Element Zero Pty Ltd v Fortescue Ltd [2025] FCA 206
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