Stradford (a pseudonym) v Judge Vasta

[2023] FCA 1020

FEDERAL COURT OF AUSTRALIA

Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020

File number:

ACD 57 of 2020

Judgment of:

WIGNEY J

Date of judgment:

30 August 2023

Catchwords:

TORTS – false imprisonment – where applicant imprisoned for contempt in matrimonial proceeding in Federal Circuit Court of Australia for purported non-compliance with disclosure orders – where judge’s contempt declaration and imprisonment orders were set aside for invalidity – consideration of whether imprisonment order was valid until set aside and provided lawful justification for imprisonment – consideration of whether the judge exercised superior court powers to punish for contempt which meant orders remained valid until set aside – found that judge’s orders, being of an inferior court and vitiated by jurisdictional error, were void ab initio and of no legal effect – found that no lawful justification for imprisonment  

TORTS – collateral abuse of process – whether the judge had an improper purpose or motive to coerce settlement of matrimonial proceeding – found it was not established that the judge’s purpose in making the contempt declaration and imprisonment order was other than to punish for non-compliance with court order – found that it was not established that the judge’s predominant purpose was “improper” – found that tort not made out

TORTS – judicial immunity – whether common law judicial immunity protected inferior court judge from liability for tort of false imprisonment – consideration of scope of common law judicial immunity afforded to inferior court judges – consideration of circumstances where inferior court judges may lose that immunity – consideration of whether common law distinction between immunity of superior and inferior court judges remains in place – where judge made orders for which there was no proper foundation in law and was guilty of a gross irregularity of procedure and denial of procedural fairness – found that the judge lost the protection of judicial immunity afforded to inferior court judges because he acted without or in excess of jurisdiction

TORTS – justification defence – whether security, police and prison officers protected from liability in tort by common law justification defence when acting pursuant to an order or warrant made by an inferior court judge which was void ab initio but appeared regular on its face when executed – held that no such defence available at common law in respect of orders or warrants issued by inferior court judges – found that defence is only available to officers of the court or “ministerial officers” who are bound by a duty to the court to obey a warrant issued by the court which appeared regular on its face

STATUTORY INTERPRETATION – whether s 249 of the Criminal Code Act 1899 (Qld) applies in the case of warrants issued by a federal court – whether Federal Circuit Court of Australia is “any court” under s 249 of the Criminal Code Act 1899 (Qld) – whether s 35 of the Acts Interpretation Act 1954 (Qld) applies to the interpretation of s 249 of the Criminal Code Act 1899 (Qld) – found that s 35 does apply and the Federal Circuit Court of Australia is not a court “in and for” or “in and of” Queensland – found that defence not available

DAMAGES – claim for general, aggravated and exemplary damages for false imprisonment and deprivation of liberty – imprisonment of seven days in watch house and prison – consideration of principles that apply in assessing general, aggravated and exemplary damages for false imprisonment and deprivation of liberty – found that unlawful imprisonment of applicant warranted award of general damages – found that duration, nature and circumstances of  imprisonment and hurt to feelings suffered by applicant warranted award of aggravated damages – found that judge’s reckless disregard of applicant’s rights and the rule of law warranted award of exemplary damages

DAMAGES – claim for general damages for personal injury – where applicant suffered post-traumatic stress disorder as a result of false imprisonment – award of damages assessed pursuant to Civil Liability Act 2003 (Qld) and Civil Liability Regulation 2014 (Qld) which require consideration of impairment caused by psychiatric injury – consideration of expert evidence regarding impairment – consideration of material non-disclosures by applicant regarding pre-existing conditions – found that award of general damages for a moderate mental disorder was warranted

DAMAGES – claim for damages for loss of earning capacity – consideration of principles applicable to compensation for loss of earning capacity – found that some diminuation to earning capacity resulted from psychiatric injury – found that no substantial financial loss established but that psychiatric injury may cause future financial loss – found that modest award of damages for loss of earning capacity warranted

Legislation:

Constitution of the Commonwealth of Australia ss 80, 118, 120

Disability Discrimination Act 1992 (Cth)

Evidence Act 1995 (Cth) s 140(2)(c)

Extradition Act 1988 (Cth)

Family Law Act 1975 (Cth) Pts XIIIA, XIIIB, ss 4(3)(e)-(f), 35, 39(1A), 75(2), 79, 112AA, 112AB, 112AD, 112AE, 112AP, 121

Family Law Rules 2004 (Cth) rr 1.10(1), 13.04

Federal Circuit Court of Australia Act 1999 (Cth) ss 10(1)(a), 17

Federal Circuit Court Rules 2001 (Cth) rr 1.06, 14.04, 19.02, 24.03

Federal Court of Australia Act 1976 (Cth) s 51A

Judiciary Act 1903 (Cth) ss 24, 35

Acts Interpretation Act 1954 (Qld) ss 4, 35

Civil Liability Act 2003 (Qld) sch 2, ss 52, 61-62

Civil Liability Regulation 2014 (Qld) schs 4-7, regs 7-8

Corrective Services Act 2006 (Qld) s 276

Criminal Code Act 1899 (Qld) ss 119A, 249, 359A, 729(3)

District Court of Western Australia Act 1969 (WA)

Interpretation Act 1987 (NSW) s 12(1)

Judicial Officers Act 1986 (NSW) s 44B

Land and Income Tax Assessment Act 1895 (NSW)

Police Powers and Responsibilities Act 2000 (Qld) s 796

24 Geo II, c 44 (Constables Protection Act) 1750 (Imp) s 6

31 Car II, c 2 (Habeas Corpus Act) 1679 (Imp)

1 & 2 Vict, c 74 (Small Tenements Recovery Act) 1838 (Imp)

Magistrates’ Courts (Northern Ireland) Act 1964 (NI) s 15

Cases cited:

Agnew v Jobson (1877) 13 Cox CC 625

Allen v Sharp (1848) 12 JP 693; 2 Exch 352

Andrews v Marris (1841) 1 QB 3; 113 ER 1030

Attorney-General (NSW) v Agarsky (1986) 6 NSWLR 38

Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342

Australian Iron & Steel Ltd v Greenwood (1962) 107 CLR 308; [1962] HCA 42

Briginshawv Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Broome vCassell & Co Ltd [1972] AC 1027; 1 All ER 801

Bulseyv The State of Queensland [2015] QCA 187

Butler v Simmonds Crowley & Galvin [2000] 2 Qd R 252; [1999] QCA 475

Butt v Newman (1819) 171 ER 850

Calder v Halket (1840) 3 Moo PC 28; 13 ER 12

Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5

Coffey v State of Queensland [2010] QCA 291

Coleman v Watson [2017] QSC 343

Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220; [1935] HCA 45

Corbett v The King (1932) 47 CLR 317; [1932] HCA 36

Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 366; [2013] 4 All ER 8

DAI v DAA (2005) 191 FLR 360; [2005] FamCA 88

Davis v Capper (1829) 10 B & C 28; 109 ER 362

Day v The Queen (1984) 153 CLR 475; [1984] HCA 3

Demer v Cook (1903) 88 LT 629; 20 Cox CC

Director of Public Prosecutions (NSW) v Kmetyk (2018) 85 MVR 25; [2018] NSWCA 156

Dr Drury’s Case (1610) 8 Co Rep 141; 77 ER 688

DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692; [2020] NSWCA 242

Eaves v Donnelly [2011] QDC 207

Ex parte Taylor; Re Butler (1924) 41 WN (NSW) 81

FAI Allianz Insurance Ltd v Lang (2004) 42 MVR 482; [2004] NSWCA 413

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

Feather v Rogers (1909) 9 SR (NSW) 192

Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34

Firth v Director of Public Prosecutions (NSW) [2018] NSWCA 78

Fleet v Royal Society for the Prevention of Cruelty to Animals [2005] NSWSC 926

Gallo v Dawson (1988) 63 ALJR 121; (1988) 82 ALR 401

Garthwaite v Garthwaite [1964] P 356; 2 All ER 233

Gerard v Hope [1965] Tas SR 15

Girginis v Kastrati (1988) 49 SASR 371

Goldie v The Commonwealth (No 2) (2004) 81 ALD 422; [2004] FCA 156

Graham v Baker (1961) 106 CLR 340; [1961] HCA 48

Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70

Groome v Forrester (1816) 5 M & S 314; 105 ER 1066

Gwinne v Poole (1692) 2 Lutw 935; 125 ER 522

Hadkinson v Hadkinson [1952] P 285; 2 All ER 567

Haines v Bendall (1991) 172 CLR 60; [1991] HCA 15

Haskins v The Commonwealth (2011) 244 CLR 22; [2011] HCA 28

Harrington v Lowe (1996) 190 CLR 311; [1996] HCA 8

Hazelton v Potter (1907) 5 CLR 445; [1907] HCA 63

Hemelaar v Walsh [2017] QDC 157

Henderson v Preston (1888) 21 QBD 362

Ho v Loneragan [2013] WASCA 20

Houlden v Smith (1850) 14 QB 841; 117 ER 323

In re McC (A Minor) [1985] 1 AC 528; [1984] 3 All ER 908

In the Marriage of Tate(No 3) (2003) 30 Fam LR 427; [2003] FamCA 112

In the Marriage of Schwarzkopff (1992) 106 FLR 274

Isaacs v Robertson [1985] AC 97; [1984] 3 All ER 140

Jones v Chapman (1845) 14 M & W 124; 153 ER 416

Kablev New South Wales (2012) 268 FLR 1; [2012] NSWCA 243

Keighly v Bell (1866) 4 F & F 763; 176 ER 781

Kuddas v Chief Constable of Leicestershire [2002] 2 AC 122; [2001] 3 All ER 193

Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10

Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47

Lewis v Australian Capital Territory (2020) 271 CLR 192; [2020] HCA 26

Lindsay v Leigh (1848) 11 QB 455; 116 ER 547

London v Cox (1867) LR 2 HL 239

Love v Attorney-General (NSW) (1990) 169 CLR 307; [1990] HCA 4

Luck v University of Southern Queensland (2014) 145 ALD 1; [2014] FCAFC 135

M’Creadie v Thomson 1907 SC 1176

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

Maxwell-Smith v S & E Hall Pty Ltd (2014) 86 NSWLR 481; [2014] NSWCA 146

McFadzean v Construction, Forestry, Mining and Energy Union [2004] VSC 289

Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5

Mills v Stanway Coaches Ltd [1940] 2 KB 334; 2 All ER 586

Minchin v Public Curator of Queensland [1965] ALR 91

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329; [2021] HCA 6

Moll v Butler (1985) 4 NSWLR 231

Mooney v Commissioners of Taxation (NSW) (1905) 3 CLR 221; [1905] HCA 61

Moravia v Sloper (1737) Willes 30; 125 ER 1039

Morrell v Martin (1841) 3 Man & G 581; 133 ER 1273

Morse v James (1738) Willes 122; 125 ER 1089

Myer Stores Ltd v Soo [1991] 2 VR 597

Nakhla v McCarthy [1978] 1 NZLR 291

New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445

New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57

New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26

New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133

New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57

Nicholas v Walker and Carter (1634) Cro Car 394; 79 ER 944

O’Connor v Isaacs [1956] 2 QB 288; 2 All ER 417

O’Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 69; [2013] NSWCA 315

Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 272 CLR 33; [2021] HCA 2

Obeid v Lockly (2018) 98 NSWLR 258; [2018] NSWCA 71

Oldham Justices; Ex parte Cawley (1996) 2 WLR 681; 1 All ER 464

Olliet v Bessey (1682) T Jones Rep 214; 84 ER 1223

Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54

Paff v Speed (1961) 105 CLR 549; [1961] HCA 14

Paul v Rendell (1981) 55 ALJR 371

Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19

Perkin v Proctor and Green (1768) 2 Wils KB 382; 95 ER 874

Permanent Trustee Co (Canberra) Ltd v Finlayson (1968) 122 CLR 338; [1968] HCA 85

Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257; [2003] HCA 10

Polley v Fordham (No 2) (1904) 91 LT 525

Posner v Collector for Interstate Destitute Persons (Vic) (1946) 74 CLR 461; [1946] HCA 50

Price v Messenger (1800) 2 Bos & P 158; 126 ER 1213

R v Armstrong [1996] 1 Qd R 316

R v Deemal [2010] 2 Qd R 70; [2009] QCA 131

R v HBZ (2020) 4 QR 171; [2020] QCA 73

R v JAA [2019] 3 Qd R 242; [2018] QCA 365

R v Manchester City Magistrates’ Court; Ex parte Davies [1988] 1 WLR 667; 1 All ER 930

R v Manchester City Magistrates’ Court Ex parte Davies [1988] 3 WLR 1357; [1989] 1 All ER 90

R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (Australian Section) (1951) 82 CLR 208; [1951] HCA 3

R v Paz [2018] 3 Qd R 50; [2017] QCA 263

R v Shetty [2005] 2 Qd R 540; QCA 225

R v Turnbull; Ex parte Taylor (1968) 123 CLR 28; [1968] HCA 88

Raad v New South Wales [2017] NSWDC 63

Rajski v Powell (1987) 11 NSWLR 522

Raven v Burnett (1895) 6 QLJ 166

Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12

Re Colina; Ex parte Torney (1999) 200 CLR 386; [1999] HCA 57

Re East; Ex parte Nguyen (1998) 196 CLR 354; [1998] HCA 73

Read v Wilmot (1672) 1 Vent 220; 86 ER 148

Robertson v The Queen (1997) 92 A Crim R 115

Romig v Tabcorp Holdings Ltd [2014] QSC 249

Ruddock v Taylor (2003) 58 NSWLR 269; [2003] NSWCA 262

Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48

Rutherford v Marshal of Family Court of Australia (1999) 152 FLR 299; [1999] FamCA 1299

Seaegg v The King (1932) 48 CLR 251; [1932] HCA 47

Scavage v Tateham (1600) Cro Eliz 829; 78 ER 1056

Shergold v Holloway (1734) Sess Cas KB 154; 93 ER 156

Shergold v Holloway (1734) 2 Str 1002; 93 ER 995

Sirros v Moore [1975] 1 QB 118; [1974] 3 All ER 776

Skouvakis v Skouvakis (1976) 11 ALR 204; [1976] 2 NSWLR 29

Smith v Bouchier (1734) 2 Str 993; 93 ER 989

Smith v Collis (1910) SR (NSW) 800

Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47

Spautz v Butterworth (1996) 41 NSWLR 1

Spirits International BV v Federal Treasury (FKP) Sojuzplodoimport [2013] FCAFC 106

State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208

Stradford v Stradford (2019) 59 FamLR 194; [2019] FamCAFC 25

Survival & Industrial Equipment (Newcastle) Pty Ltd v Owners of the Vessel “Alley Cat” (1992) 36 FCR 129; [1992] FCA 319

The Case of the Marshalsea (1612) 10 Co Rep 68b; 77 ER 1027

Triggell v Pheeney (1951) 82 CLR 497; [1951] HCA 23

Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1996] HCA 40

Varawa v Howard Smith Co Ltd (1911) 13 CLR 35; [1911] HCA 46

Vignoli v Sydney Harbour Casino (2000) Aust Torts Reports 81-451; [1999] NSWSC 1113

von Arnim v Federal Republic of Germany (No 2) [2005] FCA 662

Ward v Murphy (1937) 38 SR (NSW) 85

Wentworth v Wentworth (2001) 52 NSWLR 602; [2000] NSWCA 350

Whitfield v De Lauret and Co Ltd (1920) 29 CLR 71; [1920] HCA 75

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34.

Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88

Willis v Maclachlan (1876) 1 Ex D 376

Winters v Fogarty [2017] FCA 51

Wood v Fetherston (1901) 27 VLR 492

Yammine v Kalwy [1979] 2 NSWLR 151

Yeldham v Rajski (1989) 18 NSWLR 48

Abimbola Olowofoyeku, Suing Judges: A Study of Judicial Immunity (Oxford University Press, 1993)

Edward Lutwyche and William Nelson, The Reports and Entries of Sir Edward Lutwyche (Nutt and Gosling, 1718)

Enid Campbell, ‘Inferior and Superior Courts and Courts of Record’ (1997) 6 Journal of Judicial Administration 249

Halsbury’s Laws of England (4^th ed)

Harvey McGregor, McGregor on Damages (15^th ed, 1988)

Mark Aronson and Harry Whitmore, Public Torts and Contacts Law (Law Book Co, 1982)

Sir Frederick Pollock, The Law of Torts (1^st ed, 1887)

William Henry Watson, A Practical Treatise on the Office of Sheriff (Sweet, Maxwell, Stevens & Norton, 1848)

William Lambard, Larmbard’s Eirenarcha (1614) Cap 4 370

Division:

General Division

Registry:

Australian Capital Territory

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

852

Date of hearing:

6 to 15 December 2021, 24 May 2022

Counsel for the applicant:

Mr P Herzfeld SC with Mr D Reynolds

Solicitor for the applicant:

Ken Cush & Associates

Counsel for the first respondent:

Mr J Kirk SC with Ms P Bindon

Solicitor for the first respondent:

King & Wood Mallesons

Counsel for the second respondent:

Mr T Howe QC with Mr D Hume

Solicitor for the second respondent:

Australian Government Solicitor

Counsel for the third respondent:

Mr J Horton QC with Mr D Favell

Solicitor for the third respondent:

Crown Law

ORDERS

ACD 57 of 2020

BETWEEN:

MR STRADFORD

Applicant

AND:

JUDGE SALVATORE PAUL VASTA

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

STATE OF QUEENSLAND

Third Respondent

ORDER MADE BY:	WIGNEY J
DATE OF ORDER:	30 AUGUST 2023

THE COURT ORDERS THAT:

1.Until further order, the applicant in this proceeding be given, for the purposes of this proceeding, the pseudonym Mr Stradford and the applicant’s former wife be given the pseudonym Mrs Stradford.

2.Judgment be entered in favour of the applicant against the first, second and third respondents jointly and severally for personal injury and loss of earning capacity in the amount of $59,450.

3.Judgment be entered in favour of the applicant against the first and second respondents jointly for general and aggravated damages for false imprisonment and deprivation of liberty in the amount of $35,000 plus interest under s 51A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) from 6 December 2018 to the date of judgment at the pre-judgment rates specified in the Interest on Judgments Practice Note (GPN-INT).

4.Judgment be entered in favour of the applicant against the first and third respondents jointly for general and aggravated damages for false imprisonment and deprivation of liberty in the amount of $165,000 plus interest under s 51A of the FCA Act from 6 December 2018 to the date of judgment at the pre-judgment rates specified in the Interest on Judgments Practice Note (GPN-INT).

5.Judgment be entered in favour of the applicant against the first respondent for exemplary damages for false imprisonment and deprivation of liberty in the amount of $50,000.

6.The parties are to confer with a view to reaching agreement in respect of the appropriate order as to costs and in the event that no agreement is reached within two weeks from the date of judgment, the parties are to arrange to have the matter relisted for the purposes of hearing further submissions in respect of costs.  

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

TABLE OF CONTENTS

FACTS RELEVANT TO LIABILITY	[18]
ERRORS ALLEGEDLY MADE BY THE JUDGE	[67]
Alleged error 1: failure to make any finding that there had been a breach of the orders	[76]
Alleged error 2: failure to comply with Pts XIIIA and XIIIB of the Family Law Act	[83]
Alleged error 3: failure to follow r 19.02 of the FCC Rules	[106]
Alleged error 4: denial of procedural fairness	[117]
Alleged error 5: pre-judgment	[119]
Alleged error 6: improper purpose	[137]
THE TORTS ALLEGEDLY COMMITTED BY THE JUDGE	[150]
False imprisonment	[151]
Collateral abuse of process	[159]
LIABILITY OF THE JUDGE FOR COLLATERAL ABUSE OF PROCESS	[165]
THE LIABILITY OF THE JUDGE FOR FALSE IMPRISONMENT	[171]
Lawful justification	[173]
Are orders made by an inferior court valid until set aside?	[177]
Was the imprisonment order nevertheless valid until it was set aside?	[185]
Conclusion concerning the elements of the tort of false imprisonment	[196]
JUDICIAL IMMUNITY	[199]
The scope of judicial immunity of inferior court judges	[206]
Authorities dealing with the civil liability of inferior court judges	[213]
Cases relied on by the Judge concerning the notion of jurisdiction in the context of judicial immunity	[261]
Conclusion as to the meaning of “jurisdiction” in the context of judicial immunity	[311]
Abolition of the distinction between superior and inferior courts in respect of judicial immunity	[318]
Additional cases relied on by the Commonwealth	[333]
Conclusion as to the scope of judicial immunity of inferior court judges	[340]
Was the Judge entitled to the immunity of a superior court judge in the circumstances?	[349]
Is the Judge immune from liability arising from his imprisonment of Mr Stradford?	[358]
CONCLUSION – LIABILITY OF THE JUDGE	[373]
THE TORTS FOR WHICH THE COMMONWEALTH AND QUEENSLAND ARE ALLEGEDLY LIABLE	[376]
A pleading point?	[387]
Were the MSS guards officers of the Circuit Court?	[400]
Were the officers of the Queensland Police and Queensland Corrective Services officers of the Circuit Court?	[409]
LIABILITY AT COMMON LAW OF CONSTABLES AND “GAOLERS” ACTING ON ORDERS OF AN INFERIOR COURT	[413]
Cases relied on by Mr Stradford	[418]
Cases relied on by the Commonwealth (and Queensland)	[444]
Conclusion as to the availability of any relevant common law defence?	[510]
A STATUTORY DEFENCE?	[525]
Does s 35 of the Interpretation Act apply?	[531]
The Circuit Court was not a court “in and for” or “in and of” Queensland	[536]
CONCLUSION – LIABILITY OF THE COMMONWEALTH	[549]
CONCLUSION – LIABILITY OF QUEENSLAND	[554]
DAMAGES – OVERVIEW	[559]
Mr Stradford’s credibility and the reliability of his evidence relevant to damages	[567]
DAMAGES FOR DEPRIVATION OF LIBERTY	[575]
Overview	[576]
Relevant principles – damages for deprivation of liberty	[578]
General damages	[582]
Aggravated damages	[583]
Exemplary damages	[586]
Relevant evidence and factual findings	[588]
Detention by the MSS guards	[591]
Detention and imprisonment by Queensland officers	[596]
Aggravated damages?	[633]
Exemplary damages against the Judge?	[643]
Assessment of damages for deprivation of liberty	[647]
GENERAL DAMAGES FOR PERSONAL INJURY	[667]
Summary of issues concerning the assessment of damages for personal injury	[668]
Applicable statutory provisions	[674]
Issues arising from the evidence of the psychiatrists	[684]
Material non-disclosures to the psychiatrists?	[693]
Appropriate PIRS ratings in the disputed domains	[715]
Self-care and personal hygiene	[717]
Social and recreational activities	[722]
Concentration, persistence and pace	[727]
A pre-existing injury?	[732]
Findings concerning impairment	[735]
Assessment of general damages for personal injury	[743]
Ongoing medical expenses	[744]
Prognosis	[753]
DAMAGES FOR LOSS OF EARNING CAPACITY	[761]
Applicable legal principles	[772]
Did Mr Stradford suffer a diminution of earning capacity?	[781]
Did any diminution of earning capacity result in any financial loss?	[796]
What is the appropriate assessment of damages for loss of earning capacity?	[816]
Conclusion in respect of damages for loss of earning capacity	[838]
Causation – is the Commonwealth liable for damages arising from Mr Stradford’s injury?	[839]
SUMMARY – ASSESSMENT OF DAMAGES	[843]
DISPOSITION	[848]

REASONS FOR JUDGMENT

WIGNEY J

1. The applicant in this proceeding was the victim of a gross miscarriage of justice.  He was detained and imprisoned for contempt following what could fairly be described as little more than a parody of a court hearing.  He spent seven days in prison before being released.  The order that resulted in his incarceration was subsequently set aside.  The central issue in this proceeding is whether he is entitled to a remedy to compensate him for the injury and loss suffered by him as a consequence of that lamentable incident.

2. The applicant will be referred to as Mr Stradford in these reasons for judgment.  That is not his real name.  It is a pseudonym that was used in the proceedings that resulted in his imprisonment.  It is appropriate to continue to use that pseudonym. 

3. The person primarily responsible for Mr Stradford’s imprisonment was the first respondent, a judge of the then Federal Circuit Court of Australia (the Judge).  Mr Stradford and his former wife came to appear before the Judge in a matrimonial cause pursuant to the Family Law Act 1975 (Cth). The Judge believed that Mr Stradford had not disclosed his true financial position to his former wife and ordered him to disclose certain documents. When the matter came back before the Judge on a later occasion, the Judge declared that Mr Stradford had not complied with those orders and was in contempt of court. He ordered that Mr Stradford be imprisoned for twelve months and issued a warrant to give effect to that order.

4. Private security guards contracted by the second respondent, the Commonwealth of Australia, detained Mr Stradford pursuant to the warrant and took him to a holding cell in the court complex.  A short time later, Queensland Police officers, also acting pursuant to the warrant, took custody of Mr Stradford.  He spent five miserable days in a police watch house in Brisbane before being transported to a correctional facility operated by the third respondent, the State of Queensland.  He spent another two difficult days in that facility before he was released on bail pending an appeal.

5. There could be no real dispute that the Judge made a number of fundamental and egregious errors in the purported exercise of his power to punish Mr Stradford for contempt.  He sentenced Mr Stradford to imprisonment for contempt without first finding that Mr Stradford had in fact failed to comply with the orders in question.  He erroneously believed that another judge had made that finding, though exactly how he could sensibly have arrived at that position in the circumstances somewhat beggars belief.  He also failed to follow any of the procedures that he was required to follow when dealing with contempt allegations and otherwise failed to afford Mr Stradford any procedural fairness.  He effectively pre-judged the outcome.  Imprisonment was a fait accompli.

6. It perhaps came as no surprise, then, that on 15 February 2019, the Full Court of the Family Court of Australia (as it then was) (FamCA Full Court) set aside both the contempt declaration and the imprisonment order made by the Judge.  It concluded that “to permit the declaration and order for imprisonment to stand would be an affront to justice” and that what had occurred to Mr Stradford constituted a “gross miscarriage of justice”: Stradford v Stradford (2019) 59 FamLR 194; [2019] FamCAFC 25 at [9] and [73].

7. Mr Stradford’s detention and the deprivations and indignities that he had to endure while imprisoned exacted a significant toll on him.  There was no dispute that he continues to suffer from post-traumatic stress disorder and a major depressive disorder as a result of the incident.

8. Mr Stradford commenced this proceeding alleging that the Judge had committed the torts of false imprisonment and collateral abuse of process.  He also alleged that the Commonwealth and Queensland were vicariously liable for the actions of their officers in falsely imprisoning him.  He claimed damages for deprivation of liberty, personal injury and loss of earning capacity.  The Judge, the Commonwealth and Queensland all denied liability.

9. The question whether the Judge, the Commonwealth and Queensland are liable as alleged by Mr Stradford raises a number of issues, some of which involve complex and difficult questions of fact and law. 

10. The first issue concerns the precise nature of the errors made by the Judge in imprisoning Mr Stradford for contempt.  The Judge admitted that he made a number of errors, though he disputed some of the other errors that were alleged against him.  In particular, he disputed that, in instigating or pursuing the contempt allegation against Mr Stradford, he was motivated by an improper or collateral purpose.  He therefore disputed that he committed the tort of collateral abuse of process.  He also disputed that he pre-judged the outcome of the contempt allegation against Mr Stradford.

11. The second issue, which relates to the tort of false imprisonment, is whether the imprisonment order made by the Judge remained valid until set aside by the FamCA Full Court.  If the order remained valid until set aside, it provided lawful justification for Mr Stradford’s imprisonment.  If, however, the order was invalid from the outset because it was infected by jurisdictional error, it provided no lawful justification.       

12. The third issue, which is perhaps the most fundamental issue insofar as the Judge’s liability is concerned, is whether, even if it were to be found that Mr Stradford was falsely imprisoned, the Judge is nevertheless immune from any liability because he made the imprisonment order in his capacity as a judge.  That issue is by no means straightforward.  The Judge was a judge of an inferior court, not a superior court, and was not protected by any statutory immunity.   The difficulty arises because the common law principles concerning judicial immunity that apply in respect of inferior court judges, at least in Australia, are somewhat unsettled.  It is therefore necessary to embark on an excursion through a long line of cases, stretching back hundreds of years, which deal with the circumstances in which an inferior court judge may lose the protection of judicial immunity. 

13. The question whether the Judge is protected by judicial immunity in the circumstances of this case raises four key questions: first, whether at common law inferior court judges lose their immunity from suit in respect of their judicial acts if they acted without, or in excess of, jurisdiction; second, if that is the case, what precisely does acting without, or in excess of, jurisdiction mean or entail in that context; third, did the Judge act without, or in excess of, jurisdiction in that sense when making the imprisonment order; and fourth, whether, despite being an inferior court judge, the Judge was nevertheless entitled to the immunity of a superior court judge in the circumstances of this case because he was exercising the Circuit Court’s contempt powers.   

14. The fourth issue, which concerns the liability of the Commonwealth and Queensland, is whether police and prison officers have available to them a common law defence to an action for false imprisonment if they did no more than act in accordance with an order or warrant issued by an inferior court judge which appeared valid on its face.  This is another contentious issue.  In order to resolve it, it is again necessary to trawl through another long line of somewhat obscure cases, again stretching back hundreds of years, concerning the liability of police and prison officers in such circumstances. 

15. The fifth issue concerns whether Queensland has available to it a statutory defence based on s 249 of the Criminal Code Act 1899 (Qld). The issue is, in essence, whether that provision, properly construed, can apply to a warrant issued by a federal court, in this case the Circuit Court, simply because that court was sitting in Queensland when the warrant was issued and the warrant was therefore to be enforced in Queensland by officers located in Queensland.

16. The issues in this case are not, however, entirely limited to liability.  If liability is established, significant issues also arise in relation to the assessment and quantification of damages.  Those issues include: whether Mr Stradford is entitled to aggravated and exemplary damages for deprivation of liberty; the quantification of damages referrable to the psychiatric injury suffered by Mr Stradford as a result of his imprisonment; and the quantification for any loss of earning capacity suffered by Mr Stradford as a result of his psychiatric injury.

17. For the reasons that follow, most of the liability issues are resolved in favour of Mr Stradford.  The Judge, the Commonwealth and Queensland are liable to Mr Stradford for the tort of false imprisonment.  There was no lawful justification for Mr Stradford’s detention.  The Judge is not protected by judicial immunity because he relevantly acted without, or in excess of, his jurisdiction.  The Commonwealth and Queensland do not have available to them, at least in the circumstances of this case, any defence based on the fact that their officers acted pursuant to a warrant which appeared regular on its face.  Mr Stradford is accordingly entitled to an award of damages.  As will be seen, however, those damages, properly assessed, are not nearly as large as Mr Stradford would have it.   

    FACTS RELEVANT TO LIABILITY

18. On 7 April 2017, Mr Stradford filed an initiating application in the Circuit Court (the matter) seeking property adjustment orders under s 79 of the Family Law Act in respect of the matrimonial assets owned by him and his then wife. As adverted to earlier, both Mr Stradford and his then wife were identified in the proceedings in the Circuit Court, and on appeal in the FamCA Full Court, by pseudonyms. The identities of parties to matrimonial disputes are generally protected: see s 121 of the Family Law Act. A pseudonym order will be made in this proceeding to maintain that protection.

19. The Circuit Court had jurisdiction in relation to the matter because it had jurisdiction to determine “matrimonial causes” of the kind referred to in the Family Law Act (subject to two presently irrelevant exceptions): s 39(1A) of the Family Law Act; s 10(1) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act).  The matter between Mr Stradford and his then wife was undoubtedly a matrimonial cause.

20. Following a number of earlier interlocutory hearings, on 19 June 2018 the matter was listed before Judge Spelleken for directions. Mr Stradford appeared unrepresented and Mrs Stradford did not appear. Judge Spelleken listed the matter for final hearing at 9.45 am on 10 August 2018 and made various procedural orders, including orders that each party file a case outline setting out a minute of the orders sought, a chronology, a list of affidavits to be relied on and a statement setting out the evidence applicable to the principles in ss 79(4) and 75(2) of the Family Law Act.

21. On 10 August 2018, the matter came before the Judge for final hearing.  Mr Stradford and Mrs Stradford each appeared unrepresented.

22. The hearing did not progress smoothly.  To begin with, Mr Stradford appears not to have fully complied with the orders made by Judge Spelleken on 19 June 2018.  To make matters worse, Mrs Stradford alleged, and the Judge readily accepted, that Mr Stradford had not properly or adequately disclosed his financial circumstances.  Mr Stradford’s failure to properly disclose his financial circumstances plainly raised the Judge’s ire.  His Honour made his displeasure known to Mr Stradford and told him that he would have no hesitation in gaoling him in the event that he did not comply with any further disclosure orders.  His Honour said:

    … And, you know, believe me, if there isn’t the full disclosure there will be consequences, because that’s what I do. If people don’t comply with my orders there’s only [one] place they go. Okay. And I don’t have any hesitation in jailing people for not complying with my orders …

    (Emphasis added)

23. The following exchange, which occurred while Mr Stradford attempted to explain why he hadn’t produced statements relating to one of his gambling accounts, rather typifies the tenor of the hearing:

    [MR STRADFORD]: From my – from my enquiries with UBET, because I couldn’t find it on my transaction statement, that’s what they had told me.

    HIS HONOUR: Rubbish.

    [MR STRADFORD]: So - - -

    HIS HONOUR: Rubbish.

    [MR STRADFORD]: Okay.

    HIS HONOUR: Rubbish – rubbish. Do not accept that for one second, one iota of a second.

    [MR STRADFORD]: Okay.

    HIS HONOUR: That is absolute rubbish. So do you understand what - - -

    [MR STRADFORD]: I just – a letter from the court would have helped.

    HIS HONOUR: Do not ever talk over the top of me.

    [MR STRADFORD]: Sorry.

    HIS HONOUR: I have told you, I will put you in jail in contempt of this court if you talk over the top of me. Do you understand? I am not happy at all with you, but I am happy for you to think about this, because your disclosure at this point has been absolutely abysmal. And if it is that I order this and you do not disclose your superannuation, your current bank accounts, all the accounts that you say have now been closed, and when they were closed and what the balance was when they were closed – all of those matters need to be given to [Mrs Stradford] by a certain time, and I would think it would be within two months. And if that isn’t given to her – if it is that she comes here, and she complains that she has asked for things and you have not given them to her, bring your toothbrush. Okay. So you have a think about it.

    (Emphasis added)          

24. The end result was that the Judge effectively adjourned the hearing of the matter and made a number of orders concerning the future progress of the matter.  The orders included an order that Mr Stradford “make full and frank disclosure”, including disclosure of certain categories of documents comprising bank statements, gambling account statements, personal tax returns and company tax returns and financial statements (the disclosure orders).  Mr Stradford was also required to file an affidavit concerning his disclosure in accordance with the order.  The matter was adjourned for mention on 26 November 2018.  The orders made by the Judge included the following notations:

    A. If on the adjourned date the Court is of the opinion that the Applicant has not made full and frank disclosure in accordance with today’s orders, he is to be dealt with for contempt of those orders.

    B. If a contempt hearing has to take place before [the Judge], it will be heard 10.00am 5 December 2018.

    C. If the Court is satisfied that [there] has been full and frank disclosure by the Applicant husband, the matter be set down for a final hearing, allocating one (1) day.     

25. On 2 November 2018, Mr Stradford filed an affidavit which included his evidence regarding his disclosure of certain records to Mrs Stradford in compliance, or purported compliance, with the orders made by the Judge on 10 August 2018. 

26. On 12 November 2018, Mrs Stradford filed an affidavit which included her evidence about the extent to which she said that Mr Stradford had complied with the orders made by the Judge on 10 August 2018.  The effect of Mrs Stradford’s evidence was that Mr Stradford had failed to disclose a number of categories of documents that he was required to disclose.

27. On 26 November 2018, the matter came before Judge Turner for directions.  Mr Stradford and Mrs Stradford each appeared unrepresented.  Judge Turner asked the parties to address her on compliance with the orders of the Judge of 10 August 2018.  Her Honour made handwritten annotations on a copy of the orders, circling those categories of documents that Mrs Stradford claimed Mr Stradford had failed to disclose.  The general effect of what Mr Stradford told Judge Turner was that he had produced all that he was physically capable of producing.

28. Judge Turner did not attempt to finally resolve the dispute between Mr Stradford and Mrs Stradford concerning disclosure.  Rather, her Honour ordered that the matter be adjourned to 6 December 2018 “for hearing of the contempt application”.  It is important to emphasise that Judge Turner did not find that Mr Stradford had failed to comply with any of the disclosure orders, or that he had not made full and frank disclosure, or conclude that Mr Stradford was in contempt of the orders made by the Judge.  Nor had any “contempt application” been filed.

29. On 6 December 2018, the matter came before the Judge.  The hearing commenced shortly after 10.00 am.  As before, both Mr Stradford and Mrs Stradford appeared unrepresented. 

30. This is what the Judge said at the very commencement of the hearing:

    HIS HONOUR:  All right. You’re [Mr Stradford] and you’re [Mrs Stradford]. All right. Okay. So when we were last together on 10 August, we had quite a talk about what the assets were that the two of you had. And I made a number of orders that needed to occur. And that has gone back into what Judge Turner has. But with regard to the matter that went back before her on 26 November, I noted that if on the adjourned date the court, that is Judge Turner, was of the opinion that you, [Mr Stradford], had not made full and frank disclosure in accordance with the others, that you were to be dealt with for contempt of those orders, and that that would take place before me.  So that’s that.  So the matter can’t go anywhere at this point in time, because Judge Turner has determined that you are in contempt of the orders that I made on 10 August. So that’s where we are, it seems. So what do you want to say about that?

    (Emphasis added) 

31. Mr Stradford then told the Judge that he had tried to provide full and frank disclosure, but that he was unable to produce some of the categories of documents.  He endeavoured to explain why.  His explanations included that he did not know anything about some of the bank accounts specified in the orders, that to the best of his knowledge some of the accounts did not exist and that he had produced all that he was able to produce.  Mrs Stradford maintained that Mr Stradford’s disclosure was deficient.  She did not, however, file a contempt application, or even submit that Mr Stradford should be found to be in contempt.

32. It is worth pausing at this point to note that it would appear from the transcript that the Judge was proceeding under the misapprehension that Judge Turner had already found that Mr Stradford had not complied with the disclosure orders and was therefore in contempt.  That had not occurred.  It is also tolerably clear that Mr Stradford was maintaining that he had done all that he could do to comply with the disclosure orders.  It is equally clear that the Judge did not believe Mr Stradford.  

33. At that point, the Judge indicated that he was prepared to deal with Mr Stradford for contempt and asked Mrs Stradford what her attitude to that was.  Mrs Stradford made it abundantly clear that she did not want Mr Stradford to go to gaol unnecessarily.  She just wanted proper disclosure from him so they could arrive at a property settlement.  His Honour indicated that he would adjourn the proceeding briefly to allow the parties to discuss whether they could reach an amicable settlement, failing which he would proceed to deal with Mr Stradford for contempt.

34. When the hearing resumed after the short adjournment, Mrs Stradford indicated that she had failed to reach any agreement with Mr Stradford concerning the property settlement.  The following exchange then occurred:

    HIS HONOUR:  So that’s that. So, okay, well, it just means that we will have to go ahead with the contempt hearing. I’ve got something on at 11, so I will come back at quarter at 12. Okay. And we will sort this out. All right. So I hope you brought your toothbrush, [Mr Stradford].

    [MRS STRADFORD]: Sorry. No.

    HIS HONOUR: What’s - - -

    [MRS STRADFORD]: Sorry, I said I don’t want him to go to - - -

    HIS HONOUR: I don’t care

    [MRS STRADFORD]: Okay.

    HIS HONOUR: This is - - -

    [MRS STRADFORD]: It’s your decision.

    HIS HONOUR: This is my order.

    [MRS STRADFORD]: Okay

    HIS HONOUR: Not your order. You can’t come to a conclusion, so therefore it means that this is still on foot. If this matter is still on foot, he is in contempt. The only way he gets out of contempt is if this matter is not on foot any more. You said that it cannot be settled, that he will not give you what you think is just and equitable. Therefore, it’s still on foot. Therefore, he is in contempt. Therefore, I am going to deal with him for contempt. Okay. I’ve made that very, very clear. It’s not your decision; it’s my decision. You’re not the one that’s sending him to jail; I am. These are court orders and court orders need to be obeyed. Otherwise, what’s the use of making the court orders. I made it very clear in August 2018 exactly what would happen if there was no compliance with these orders. Now, it’s not your fault. You’re not the one who’s sentencing him to jail; I am. But he won’t settle justly and equitably with you, the matter is on foot. You understand it. This is not anyone’s fault but your own.

    (Emphasis added)

1. When the hearing resumed just before midday, the Judge repeated what he had said earlier about Judge Turner having found that Mr Stradford was in contempt and asked what it was that Mr Stradford wanted to say.  Mr Stradford again endeavoured to tell the Judge that he had disclosed all that he was able to disclose, but his Honour summarily dismissed those protestations.  There is no indication that the Judge had read or considered Mr Stradford’s affidavit.  The contents of that affidavit were certainly not the subject of any questioning, by either the Judge or Mrs Stradford.  Mr Stradford’s affidavit was certainly not formally read and Mr Stradford was not sworn-in or cross-examined on oath.   

2. His Honour delivered an ex tempore judgment in which he found that Mr Stradford was in contempt of the orders made on 10 August 2018: Stradford & Stradford [2018] FCCA 3890 (contempt judgment or CJ).  His Honour ordered that Mr Stradford be sentenced to imprisonment for a period of 12 months, to be served immediately, with Mr Stradford to be released from prison on 6 May 2019 and the balance of the sentence to be suspended for a period of 2 years.

3. In his judgment, the Judge outlined the history of the matter. That history included, according to his Honour, that Judge Turner had already found that Mr Stradford was in contempt for non-compliance with the orders made on 10 August 2018. His Honour noted that, having regard to that finding, it was up to him to assess “the criminality of that contempt”: CJ at [21]. His Honour continued (at [22]-[28]):

   As I have stated both in the preamble to these remarks and in the course of the submissions that have been made in this Court, the gravamen of this contempt is that this matter that was supposed to be ready to proceed cannot proceed. The gravamen is that the wife is not cognisant of the true financial position of the Applicant, so that she can mount a meaningful case before this Court for a just and equitable property adjustment.

   I am of the view that these matters were matters where the Applicant, if he truly wanted, could have made proper disclosure. I am of the view that the Applicant was able to get those items and the Applicant was able to simply tell the wife exactly what sort of amount of money he was getting, how he was getting it, how it was being used or funnelled through different companies, what that meant for him “in the hand” and where that money has been dissipated.

   He has chosen not to. There can be no other inference available other than this is deliberate conduct so that the wife is kept in the dark and cannot make a proper, just and equitable submission to this Court as to what the property adjustment should be. It would leave the Court, as it was at 10 August 2018, looking at a negative property pool so that the Applicant husband did not have to in any way account for what it is that he has been doing with money that he has come into possession of, especially from the years 2014 to the present.

   The mere fact that it seems that at least a million or something close to a million dollars has gone through gambling accounts shows that this is a proper inference to draw. That makes this contempt an extremely serious one.

   The Court has very few weapons at its disposal to ensure that its orders are complied with. The Court must show to all litigants and to the whole of the community that when it makes orders, those orders must be complied with or there will be serious consequences and condign punishment to those who flout the orders of the Court.

   In what I consider to be a very merciful submission, the wife has asked, even though she is not really a party to this part of the contempt proceeding, to say that she did not want the husband to be jailed because they have children together. It was obvious to me that she felt that she would be somehow responsible for this. Nothing could be further from the truth.

   This is a matter where the responsibility lies wholly and solely with the husband. If it was that he had complied with these orders or shown to this Court that he had genuinely attempted to comply, then there would be no contempt. But there has been a contempt and notwithstanding how it is that the wife feels, it leads the Court only to one conclusion; that there must be an appropriate punishment for this contempt.    

4. Following the delivery of his ex tempore judgment, the Judge made the following declaration and order:

   THE COURT DECLARES:

   A. That [MR STRADFORD] is in contempt of Order 3(a), (h), (j), (k), (l), (m), (n), and (o) of Orders made by [the Judge] on 10 August 2018 in that [MR STRADFORD] has failed to make full and frank financial disclosure.

   THE COURT ORDERS:

   1. That the Applicant [MR STRADFORD] be sentenced to a period of imprisonment in the Arthur Gorrie Correctional Centre for a period of twelve (12) months, to be served immediately with the Applicant 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 from today’s date.  

5. At 12.25 pm on 6 December 2018, the Judge signed a document entitled “Warrant of Commitment”.  The body of the document was in the following terms:

   WARRANT OF COMMITMENT

   Family Law Act 1975

   To:     The Marshal

   All Officers of the Australian Federal Police

   All Officers of the State and Territory police forces

   The Commissioner of Queensland Corrective Services

   WHEREAS: [MR STRADFORD] of [redacted], in the State of Queensland appeared before this Court on 6 December 2018.

   AND WHEREAS the Court made an order, a copy of which is attached to this warrant, that the said person be imprisoned.

   YOU, the said Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia are hereby directed to take and deliver the said person to the Commissioner of Queensland Corrective Services, together with this warrant.

   AND YOU, the Commissioner of the Queensland Corrective Services are hereby directed to receive the said person into your custody, and to keep that person in accordance with the said order, a copy of which is attached to this warrant.

   (Emphasis in original)

6. Shortly thereafter, two guards took custody of Mr Stradford.  Those guards were employed by MSS Security Pty Ltd.  At that time, MSS Security provided guarding services at the court complex occupied by the Circuit Court in Brisbane pursuant to a contract between it and the Commonwealth dated 28 November 2014. 

7. One of the MSS guards had been called to the Judge’s courtroom shortly before midday and was present in the courtroom from at least 12.05 pm during the delivery of the Judge’s ex tempore judgment. 

8. The two MSS guards escorted Mr Stradford to the door of the courtroom, through a public concourse for approximately 14 metres to a service door, though the service door to a goods lift and then to a holding cell in the court complex occupied by the Circuit Court.  The MSS guards supervised Mr Stradford while he was detained in the holding cell.

9. There is no dispute that the conduct of the relevant MSS guards constituted a detention of Mr Stradford which was undertaken for and on behalf of the Commonwealth. 

10. Between approximately 12.35 pm and 12.40 pm, officers of the Queensland Police Service arrived at court complex occupied by the Circuit Court.  Between approximately 12.54 pm and 1.00 pm, those police officers left with Mr Stradford, handcuffed in their custody, and took him in a police van to the Roma Street Watchhouse. 

11. For reasons that will become apparent, it is relevant to note that the Queensland Police Service had received a telephone call requesting the attendance of police officers at the Circuit Court at 11.43 am on 6 December 2018.  That was before the Judge recommenced the hearing during which he purportedly dealt with Mr Stradford for contempt.

12. Mr Stradford was transferred from the Roma Street Watchhouse to the Brisbane Correctional Centre on the morning of 10 December 2018.  He was therefore imprisoned at the watch house by officers of the Queensland Police Service from 6 December 2018 to 10 December 2018; a total of 4 nights and 5 days.  Further facts concerning Mr Stradford’s imprisonment at the watch house will be detailed later in these reasons in the context of the assessment of damages.

13. There is no dispute that the conduct of the relevant officers of the Queensland Police Service between 6 December 2018 and 10 December 2018 constituted imprisonment of Mr Stradford.

14. Mr Stradford arrived at the Brisbane Correctional Centre on the morning of 10 December 2018.  From that point in time he was detained by officers of Queensland Corrective Services. 

15. On 12 December 2018, the matter was listed again before the Judge to hear an oral application to stay the orders made by his Honour on 6 December 2018. On this occasion Mr Stradford was legally represented by counsel and Mrs Stradford appeared unrepresented by telephone. By this time, Mr Stradford had filed an appeal against the judgment and orders of the Judge. The nub of the appeal was that the Judge had proceeded on the erroneous premise that Judge Turner had found that Mr Stradford was in contempt and that it was not open on the evidence to find to the requisite standard that Mr Stradford had acted in flagrant challenge the court’s authority as required by s 112AP(1)(b) of the Family Law Act. The basis of the stay application was that if a stay was not granted, Mr Stradford would serve a significant proportion of his sentence of imprisonment and that to that extent the appeal would be rendered nugatory. Counsel for Mr Stradford also submitted that the appeal had reasonable prospects of success.

16. The Judge delivered an ex tempore judgment in which he granted the stay application: Stradford & Stradford (No 2) [2018] FCCA 3961 (stay judgment or SJ). His Honour effectively conceded that he erred in finding that Mr Stradford was in contempt and erred in sentencing him to imprisonment. In particular, his Honour appeared to accept that he incorrectly assumed that Judge Turner had already found that Mr Stradford was in contempt. His Honour’s reasons for allowing the stay application were as follows (SJ at [1]-[15]):

    On 6 December 2018, I made an order that Mr Stradford was in contempt of orders that I had previously made on 10 August 2018.

    Specifically, I found him in contempt of order 3(a), (h), (j), (k), (l), (m), (n) and (o) of those orders. I had actually not found him in contempt of orders 3(k) or 3(l), but had found him in contempt of the others.

    My reason for doing so was that I had been given a list with markings from Her Honour, Judge Turner. My reasons for having made the orders on 10 August 2018 were to tell the Applicant husband that he needed to make this disclosure properly, especially since there had been previous orders for him to do so.

    My notation was that the matter would go back to a duty judge; but if the duty judge was of the opinion that the Applicant has not made full and frank disclosure in accordance with today’s orders, that he was to be dealt with for contempt of those orders.

    That was to allow that Court to then deal with the contempt, or, if the Court so chose, they could send the matter back to me and I would deal with the matter as a contempt of my orders. My very clear memory is that I had told the Applicant that he would be looking at two years’ imprisonment if I found that he was in contempt of my orders.

    What has been shown to me is that I could very well have been in error in assuming that Her Honour had actually found, by the markings that she had given to me, that the Applicant was prima facie in contempt of my orders.

    Whilst I had read the affidavit of the Applicant that he had filed on 2 November 2018, the only matters that I had really gone through in any depth were the G Group accounts and the tax returns; that is, making a finding that the G Group accounts and the online gambling accounts had not been properly disclosed. I had been given the documents that the Applicant had disclosed and they were totally insufficient for the purposes of affording the wife knowledge of the financial circumstances of the husband.

    The husband had claimed that he had disclosed his tax returns but the fact was that he had not disclosed his tax returns; he had only disclosed his tax assessments and not his actual returns.

    Those were the matters that I specifically highlighted as they were the matters that I felt were most illustrative of the contempt shown by the Applicant husband. I did not feel the need to explore any other aspect further because I had, in effect, proceeded upon the basis that Her Honour had already made a finding of contempt.

    It seems, on the material, that this could well have been an incorrect assumption. If that was an incorrect assumption, then it is an error by me not to have actually gone through with each and every item on that list and made a ruling as to whether the Applicant father was in contempt of my orders.

    To do that I would have had to have the Applicant sworn to give evidence and cross-examined upon the material. I could have then used that actual sworn evidence to decide whether the contempt had actually occurred. But I proceeded straight to a “sentencing” proceeding because I was of the view that the issue of whether the Applicant husband was in contempt had already been decided.

    It seems to me if that is also the conclusion that is reached by a Court of Appeal (and I think that it would be), then that Court would really have no hesitation in allowing the appeal and remitting the matter back to me.

    I have looked at the declaration that I made on 6 December 2018 and, after discussion with counsel, have come to the conclusion that I am functus officio with regard to that declaration. I do not have the power to stay that declaration, even though I am of the view that it should be stayed.

    However, I can stay the orders that I had made, especially the one that the Applicant be sentenced to a period of imprisonment of 12 months, but to be released after serving five months. It seems to me that the basis upon which I made that order is almost certainly incorrect. Therefore, it would be totally unjust not to grant the relief that has been sought by the Applicant husband today.

    So, I will allow the oral application for a stay of order 1 sentencing the Applicant to imprisonment. That order is stayed pending the outcome of the appeal of that order and declaration.

17. The Judge stayed the order he had made on 6 December 2018 sentencing Mr Stradford to imprisonment for 12 months and ordered that Mr Stradford be forthwith released from custody pending the outcome of the appeal from his judgment.

18. Mr Stradford was released from the Brisbane Correctional Centre on 12 December 2018.

19. Mr Stradford was imprisoned at the Brisbane Correctional Centre by Queensland Corrective Services officers from 10 December 2018 to 12 December 2018; a total of two days and two nights.  Further facts concerning Mr Stradford’s imprisonment at the Brisbane Correctional Centre will be detailed later in the context of the assessment of damages.

20. There was no dispute that the conduct of the relevant officers of the Queensland Corrective Services 10 December 2018 and 12 December 2018 constituted imprisonment of Mr Stradford.

21. There is no dispute that the Judge’s conduct in making the declaration and orders on 6 December 2018 was a direct or proximate cause of the whole of Mr Stradford’s imprisonment from 6 December 2018 to 12 December 2018.  Nor was there any dispute that the Judge’s conduct in initiating and maintaining the contempt proceeding against Mr Stradford was a necessary cause of the whole of Mr Stradford’s imprisonment from 6 December 2018 to 12 December 2018.

22. The appeal from the Judge’s contempt judgment was swiftly heard and determined.  On 15 February 2019, the FamCA Full Court delivered judgment unanimously allowing Mr Stradford’s appeal from the orders made by the Judge on 6 December 2018: Stradford.  The FamCA Full Court’s view of the Judge’s conduct of the proceeding which resulted in Mr Stradford being imprisoned is readily apparent from the following passage at the commencement of the judgment (Stradford at [9]):

    We are driven to conclude that the processes employed by the primary judge were so devoid of procedural fairness to the husband, and the reasons for judgment so lacking in engagement with the issues of fact and law to be applied, that to permit the declaration and order for imprisonment to stand would be an affront to justice …   

23. The FamCA Full Court set aside both the declaration and the order made by the Judge on 6 December 2018 sentencing Mr Stradford to imprisonment.  The key findings made by the FamCA Full Court may be summarised as follows.

24. First, the Judge proceeded in apparent ignorance or disregard of the provisions of the FCC Act and Family Law Act which separately deal with the punishment for a contempt of court committed in the face or hearing of the court (relevantly dealt with in Pt XIIIB of the Family Law Act and s 17 of the FCC Act) and the imposition of sanctions for failing to comply with orders (dealt with in Pt XIIIA of the Family Law Act).

25. Second, it was clear that the Judge had resolved or pre-determined, in advance of any finding that Mr Stradford had breached any of the disclosure orders, and irrespective of whether any application was made by Mrs Stradford, that he would, of his own motion, treat any non-compliance as a contempt, as distinct from a failure to comply with orders: Stradford at [13]-[20]. 

26. Third, and relatedly, the procedure adopted by the Judge was fundamentally flawed from the outset.  The FamCA Full Court’s conclusion in that regard is summarised in the following passage (at [19]):

    It can thus be seen that the primary judge’s process failed from the outset on a number of levels. In advance of any breach of orders the primary judge pre-determined that any such breach, of whatsoever nature, would constitute “contempt” within the meaning of the Act. Moreover, the primary judge cast himself as prosecutor in any future proceeding for the offence of contempt. Both of these conclusions were reached by the primary judge without particularising any charge; establishing that the charges as particularised were prima facie established; and affording the husband any opportunity to be heard.          

27. The FamCA Full Court considered that the Judge’s pre-judgment as to how he would deal with Mr Stradford for non-compliance with the disclosure orders was “made all the more egregious by reason of the judge pre-judging imprisonment as the punishment before knowing the particulars of the offence or any matters in mitigation”: Stradford at [21].

28. Fourth, the Judge in effect performed the roles of prosecutor, witness and judge and failed to follow the procedure mandated in r 19.02 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) for dealing with allegations of contempt other than contempt in the face or hearing of the court: Stradford at [22]-[27]. There was “no feature of this case which warranted, in the broader interests of justice, any departure from the fundamental principles of justice reflected in r 19.02”: Stradford at [28]. The Judge did not “employ, by way of procedure, anything remotely resembling the procedures specified in r 19.02 for the purposes of the hearing” on 6 December 2018: Stradford at [37].

29. Fifth, the Judge proceeded on the erroneous premise that Judge Turner had determined that Mr Stradford was in contempt, even though it could not possibly be inferred that any such determination had in fact been made: Stradford at [40]. The FamCA Full Court plainly found it difficult to comprehend how the Judge could possibly have come to believe that Judge Turner had already found that Mr Stradford was in contempt. The court also appears to have found that it was difficult to reconcile the Judge’s belief in that regard with what occurred during the hearing. The FamCA Full Court said (at [41]-[43]):

    Further, if as is asserted, the primary judge was of the view that Judge Turner had already made a determination as to contempt, it is impossible to reconcile what follows in the transcript. There the primary judge can be seen questioning the husband as to his disclosure. Quite why that would be necessary if a determination of contempt had already been made is not at all apparent.

    It is also difficult to understand why, if the primary judge was of the view that Judge Turner had made the relevant determination as to contempt, it would be that the primary judge would himself ultimately make the relevant declaration or, indeed, to have heard the proceedings at all. Further, if Judge Turner had determined there was a contempt, it should be expected that, having followed the appropriate process, her Honour would move to sentence.

    Apart from erroneously stating that Judge Turner had made the determination, it is notable that the primary judge did not inform the husband of the particulars of the contempt if it can be construed that what the primary judge had purported to do was to receive submissions as to penalty.

1. Sixth, the FamCA Full Court found that, even putting to one side the Judge’s failure to follow the processes and procedures mandated by the FCC Act and FCC Rules, the Judge’s conduct of the proceeding constituted a clear denial of procedural fairness. Having considered the key parts of the transcript of the hearing on 6 December 2018, the FamCA Full Court concluded as follows (at [52]-[53]):

   It can be seen that without providing any particulars whatsoever as to the alleged contempt, the husband has purportedly been found guilty. The husband has had no opportunity whatsoever to be heard about that. Indeed, he could not be because he did not know what charge he was facing. Neither, thereafter, was the husband afforded the opportunity to be heard about any sanction. The primary judge announced to the husband that he will be “serving 12 months in jail” if, as the primary judge postulates, his Honour deals with “contempt today”.

   It is difficult to envisage a more profound or disturbing example of pre-judgment and denial of procedural fairness to a party on any prospective orders, much less contempt, and much less contempt where a sentence of imprisonment was, apparently, pre-determined as the appropriate remedy.

2. Seventh, the Judge’s conclusion that Mr Stradford had failed to comply with the orders made on 10 August 2018 was without any evidentiary foundation.  Mr Stradford had joined issue as to whether he had failed to comply with the orders and yet there was “[n]o determination of contested evidence”: Stradford at [56]. The Judge’s failure to consider and reconcile Mr Stradford’s sworn evidence constituted a “profound denial of procedural fairness”: Stradford at [58].

3. The FamCA Full Court concluded that the making by the Judge of the declaration that Mr Stradford was in contempt and the order that Mr Stradford be imprisoned “constituted a gross miscarriage of justice”: Stradford at [73].

   ERRORS ALLEGEDLY MADE BY THE JUDGE

4. References to statutory provisions in these reasons should be taken to be references to the provisions as they were as at 6 December 2018.

5. Mr Stradford alleged that, in finding that he was in contempt and ordering that he be imprisoned for 12 months, the Judge made six separate errors.  He also contended that, whether considered individually or cumulatively, those errors were such that the Judge acted without or in excess of his jurisdiction.   

6. The first alleged error was that the Judge lacked power to make the imprisonment order because it was made without the Judge first finding that there had been a breach of any orders.

7. The second alleged error was that the Judge lacked power to make the imprisonment order because it was made in the absence of any finding that the failure to comply with the orders constituted a “flagrant challenge to the authority of the court” as required by s 112AP of the Family Law Act and otherwise did not comply with Pt XIIIA of the Family Law Act.

8. The third alleged error was that the Judge had failed to follow or apply the procedure for hearing and determining contempt allegations which was mandated in r 19.02 of the FCC Rules.

9. The fourth alleged error was that the Judge denied Mr Stradford procedural fairness.

10. The fifth alleged error was that the Judge pre-judged the issue of whether Mr Stradford was in contempt and whether he should be sentenced to imprisonment.

11. The sixth alleged error was that the Judge acted for an improper purpose in that he used the threat of imprisonment as a means of exerting pressure on Mr Stradford to settle the case outside the courtroom.

12. Some, but not all, of those errors were admitted or not disputed by the Judge, the Commonwealth and Queensland.  The Judge and Queensland also admitted that the Judge’s decision to imprison Mr Stradford was infected by jurisdictional error.  It is nevertheless necessary to make findings concerning the individual errors alleged by Mr Stradford, particularly those which were not admitted.

    Alleged error 1: failure to make any finding that there had been a breach of the orders

13. This alleged error may be dealt with in brief terms.  The Judge and Queensland each admitted that the Judge made an order that he lacked the power to make in the particular circumstances of the case because he sentenced Mr Stradford to imprisonment for contempt without first finding that Mr Stradford had in fact breached or failed to comply with any orders. 

14. The Commonwealth, however, denied that the Judge erred in this way.  It contended that the Judge had found that there had been a breach of the orders made on 10 August 2018.  It pointed, in that regard, to paragraph 20 of the contempt judgment.

15. While the Judge’s reasons for judgment in respect of the finding of contempt lack clarity and are beset by ambiguities, it is in all the circumstances impossible to accept that he in fact made any finding that Mr Stradford breached the orders.  Rather, he simply proceeded on the assumption, albeit an entirely erroneous and somewhat inexplicable assumption, that Judge Turner had somehow already found that Mr Stradford was in contempt.  That is what the Judge said at the very commencement of the hearing: “… because Judge Turner has determined that you are in contempt of the orders that I made on 10 August”.  It is also what the Judge said in the contempt judgment at [13]-[14] and the stay judgment at [9]: “I had, in effect, proceeded upon the basis that Her Honour [Judge Turner] had already made a finding of contempt”. 

16. The Commonwealth’s reliance on paragraph 20 of the contempt judgment is misplaced.  In that paragraph, the Judge stated that “it seems to me that given everything that has been said, and especially the fact that Judge Turner has already found that there is a contempt, that the Applicant is in contempt for the non-compliance with orders of mine” (emphasis added). Read in context and in light of what the Judge said during the hearing, in the balance of the contempt judgment and in the stay judgment, it is quite clear that his Honour made no independent finding that Mr Stradford had failed to comply with the orders. The Judge’s reference to “everything that has been said” appears to be a reference to what Mr Stradford had said during the hearing, which his Honour characterised as amounting to an attempt to “give some excuses for his failure”: CJ at [15].

17. It is also difficult to see how the Judge could possibly be said to have made an independent finding that Mr Stradford had failed to comply with the orders in circumstances where, as the FamCA Full Court found, Mr Stradford had denied breaching the orders and had sworn an affidavit concerning his compliance with the orders.  It is abundantly clear from the transcript and the contempt judgment that the Judge in fact made no determination in respect of the contested evidence: see Stradford at [55]-[58].  It may also be noted in that regard that, to convict Mr Stradford of contempt, the Judge was required to find that all of the elements of the contempt, including non-compliance with the court orders, had been proved beyond reasonable doubt.  At no point did the Judge state that he was satisfied beyond reasonable doubt that there had been non-compliance with the orders.  Indeed, there is no indication that the Judge applied the criminal standard of proof to any of the elements that needed to be established before Mr Stradford could be found to have been in contempt.     

18. Mr Stradford’s claim that the Judge lacked power to make the imprisonment order by making it without first finding that there had been a breach of any orders must accordingly be upheld.

19. For reasons that will become apparent, it is important to emphasise that it is clear that the Judge had the means and ability to ascertain that Judge Turner had not in fact made any finding that Mr Stradford had breached any aspect of the disclosure orders and that Judge Turner had not found that Mr Stradford was in contempt.  The Judge did not, in his submissions, contend otherwise.  It is abundantly clear that the Judge ought to have known that Judge Turner had made no such finding.

    Alleged error 2: failure to comply with Pts XIIIA and XIIIB of the Family Law Act

20. Mr Stradford contended that the Judge lacked power to make the imprisonment order in the circumstances because he did not comply with the provisions of Pts XIIIA and XIIIB of the Family Law Act. The requirements of Pts XIIIA and XIIIB of the Family Law Act are discussed in general terms in Stradford at [13]-[15], [18] and [67]-[70]. There could be little doubt that the Judge had no regard whatsoever to the provisions in those Parts of the Family Law Act. He was either entirely ignorant of the existence of those provisions or chose to completely ignore them.

21. Part XIIIA sets out a regime for the imposition of sanctions in respect of the contravention of orders under the Family Law Act, which included orders made under the Family Law Rules 2004 (Cth) (FamL Rules) and orders made by the Circuit Court under the related FCC Rules: s 112AA and s 4(3)(e) and (f) of the Family Law Act. While it is somewhat unclear, the relevant disclosure orders made by the Judge must have been made under either the FamL Rules (see rr 1.10(1) and 13.04) or the FCC Rules (see rr 14.04 and 24.03). Either way, the order must be taken to be an order made under the Family Law Act and therefore subject to the provisions in Pt XIIIA.

22. Provisions in Pt XIIIA require that, before a court imposes a sanction on a person for contravening an order, the court must find: first, that the person intentionally failed to comply with the order, or made no reasonable attempt to comply with the order (s 112AB(1)(a) of the Family Law Act); and second, the contravention occurred without reasonable excuse: s 112AD(1) of the Family Law Act. The making of findings in respect of those matters is in effect a mandatory precondition to the imposition of sanctions for non-compliance of orders pursuant to Pt XIIIA of the Family Law Act. The Judge made no such findings.

23. Perhaps more significantly, s 112AD(2) of the Family Law Act specified the sanctions that a court was permitted to impose for contravening an order. Those sanctions included imprisonment. However, s 112AE(2) provided that a court was not permitted to impose a sentence of imprisonment for contravening an order unless the court was satisfied that “in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention pursuant to any of the other paragraphs of subsection 112AD(2)”. It is abundantly clear that the Judge did not turn his mind to that issue. Indeed, as the FamCA Full Court effectively found, the Judge pre-judged imprisonment as the punishment before his Honour even knew the particulars of the contravention or any matters in mitigation: Stradford at [21].

24. Part XIIIB of the Family Law Act, which consists of s 112AP, deals specifically with contempt of court. Section 112AP(1) provides that the section applies to a contempt of court that either “does not constitute a contravention of an order under this Act” or “constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court” (emphasis added). Plainly the contempt for which the Judge imprisoned Mr Stradford allegedly involved a contravention of an order under the Family Law Act. It follows that, for s 112AP to apply, the Judge was required to find that the contravention involved a “flagrant challenge to the authority of the court”. His Honour made no such finding. And as the FamCA Full Court found, it is “difficult to envisage a case where failure to comply with orders for disclosure could be said to involve a flagrant challenge to the authority of the Court or where an established failure to fully disclose could be other than a contravention covered by Pt XIIIA of the Act and not Pt XIIIB”: Stradford at [68].

25. The Judge did not dispute that he did not follow or comply with the requirements of either Pt XIIIA or s 112AP of the Act. Nor did the Commonwealth nor Queensland. The Judge and the Commonwealth submitted, however, that the failure to follow or comply with those requirements did not amount to an error because the Judge was empowered to deal with Mr Stradford for contempt pursuant to s 17 of the FCC Act, which does not prescribe or mandate any of the requirements or limitations found in Pt XIIIA and s 112AP of the Family Law Act.

26. Section 17 of the FCC Act provided as follows:

    (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.

27. Section 35 of the Family Law Act was in relevantly similar terms to s 17(1) of the FCC Act.

28. The Judge relied on judgments of the Supreme Court of New South Wales that tended to suggest that the predecessor provision to s 112AP of the Family Law Act (s 108 of the Family Law Act, repealed in 1989) was supplementary to and did not cut down the operation of s 35 of the Family Law Act, at least insofar as the Family Court’s power to punish for contempt was concerned: Skouvakis v Skouvakis (1976) 11 ALR 204; [1976] 2 NSWLR 29 at 34; Moll v Butler (1985) 4 NSWLR 231 at 235-236. The Commonwealth also relied on dicta in the judgment of the High Court in Re Colina; Ex parte Torney (1999) 200 CLR 386; [1999] HCA 57, a case concerned with whether s 80 of the Constitution of the Commonwealth of Australia required that a person charged with contempt of the Family Court be tried before a jury.

29. There are a number of difficulties with the Judge’s reliance on the decisions in Skouvakis and Moll v Butler. Both decisions concerned the contempt powers under the Family Law Act before the substantial amendments to the Family Law Act in 1989, which included the insertion of Pts XIIIA and XIIIB. As already noted, both decisions concerned the operation of s 108 of the Family Law Act, which was the predecessor to s 112AP. Section 108 was, however, in materially different terms to s 112AP. In particular, s 108 did not contain the express limitation in s 112AP(1)(b), the effect of which is that s 112AP does not apply in the case of a contravention of an order unless that contravention involved a “flagrant challenge to the authority of the court”. Both Skouvakis and Moll v Butler also concerned the jurisdiction or powers of superior courts to punish for contempt; the Supreme Court of New South Wales in the case of Skouvakis and the Family Court in the case of Moll v Butler.  As was made clear in both Skouvakis (at 2 NSWLR 33-34) and Moll v Butler (at 236), superior courts have an inherent power to punish for contempt. That consideration appears to have influenced the reasoning in both Skouvakis and Moll v Butler.  In contrast, the Circuit Court was an inferior court with no inherent power to punish for contempt.   

30. Perhaps most significantly, since the 1989 amendments to the Family Law Act, the FamCA Full Court has held that Pt XIIIB of the Family Law Act is a “complete code for dealing with contempts”: DAI v DAA (2005) 191 FLR 360; [2005] FamCA 88 at [47], [67]; see also Rutherford v Marshal of Family Court of Australia (1999) 152 FLR 299; [1999] FamCA 1299; In the Marriage of Schwarzkopff (1992) 106 FLR 274. It may be true, as the Judge submitted, that each of those cases dealt primarily with the question whether the sentencing principles in the Crimes Act 1914 (Cth) applied when imposing sanctions for contempt under the Family Law Act. It is, however, nevertheless clear from the reasoning in each of the cases that the FamCA Full Court conluded that the contempt powers under the Family Law Act were exhaustively dealt with in Pt XIIIB. There was certainly no suggestion in any of the judgments that s 35 of the Family Law Act provided a separate and distinct power to punish for contempt that was not constrained by or subject to Pt XIIIB. In particular, there was no suggestion that a contempt involving contravention of an order could be punished pursuant to s 35 of the Family Law Act, even if there was no allegation or finding that the contravention of the order involved a flagrant challenge to the authority of the court as required by s 112AP(1) of the Family Law Act.

31. I should follow judgments of the FamCA Full Court, an intermediate appellate court, unless persuaded that they are plainly wrong. That is all the more so given that jurisdiction under the Family Law Act is a specialist jurisdiction and the Family Court is a specialist court in respect of that jurisdiction. I am not persuaded that the FamCA Full Court was wrong in concluding that, properly construed in the context of the Family Law Act as a whole, Pt XIIIB constitutes a code for dealing with contempts arising in the context of jurisdiction under the Family Law Act. I should, in those circumstances, follow DAI, Rutherford and Schwarzkopff rather than the dicta in Skouvakis and Moll v Butler.

32. It is also clear that the FamCA Full Court in Stradford proceeded on the basis that Pt XIIIB was a code for dealing with contempts in the exercise of jurisdiction under the Family Law Act and that the Judge was required to, but did not, follow or apply that code. In particular, it held that the power to punish for contempts in s 17 of the FCC Act is a “power to punish contempts committed in the face or hearing of the Court” (Stradford at [13]). The court noted that the Family Law Act makes a distinction between such contempts and sanctions for failure to comply with orders and proceeded on the basis that contempts in the face or hearing of the court are to be dealt with in accordance with the provisions in Pt XIIIB of the Family Law Act, whereas sanctions for the non-compliance with orders are to be dealt with in accordance with Pt XIIIA, save for those that are found to constitute “flagrant challenges to the authority of the Court”: Stradford at [14]. The FamCA Full Court considered that it could not “sensibly be conceived” that the Judge “had in mind to treat [Mr Stradford’s] alleged breach or breaches of orders for disclosure made in financial proceedings as constituting contempt in the face of the court within the meaning of s 17 of the FCC Act or Pt XIIIB of the [Family Law] Act”: Stradford at [15].

33. Even putting the FamCA Full Court authorities to one side, the legislative intent behind Pts XIIIA and XIIIB of the Family Law Act is clear. Part XIIIA and s 112AP were inserted in the Family Law Act in 1989 following a report by the Australian Law Reform Commission (ALRC) in relation to contempt (Contempt, Report No 35, 1987).  In considering contempts arising from non-compliance with court orders, the ALRC report drew a distinction between considerations associated with orders in family law and general civil law and took the view that the purpose of punishment in family law proceedings was not so much upholding the court’s authority as an end in itself, but in fulfilling the expectations of litigants that court orders will be obeyed: see In the Marriage of Tate (No 3) (2003) 30 Fam LR 427; [2003] FamCA 112 at [62]. That is why sanctions for non-compliance with orders are separately dealt with in Pt XIIIA of the Family Law Act, other than in the case where the non-compliance involves a flagrant challenge to the authority of the court and s 112AP applies.

34. The legislative purpose behind Pts XIIIA and XIIIB was in effect that those Parts of the Family Law Act would effectively constitute a code for dealing with non-compliance with orders and contempt in matrimonial causes. That legislative purpose would be defeated if courts exercising jurisdiction under the Family Law Act, including the Circuit Court, could simply choose to ignore those provisions and punish for contempts, including contempts allegedly arising from non-compliance with orders, pursuant to general power conferring provisions such as s 17 of the FCC Act. The prescriptive and exhaustive provisions in Pts XIIIA and XIIIB in effect excluded any other power to deal with contempt. A similar conclusion was reached in respect of relevantly analogous statutory provisions in R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (Australian Section) (1951) 82 CLR 208; [1951] HCA 3.

1. It should also be noted in this context that Ms Bossert was also instructed to calculate the damages suffered by Mr Stradford on the assumption that he would, in the future, complete a law degree, leave the real estate industry and become a lawyer.  Ultimately, however, that hypothesis was abandoned as a means of calculating Mr Stradford’s damages.

2. What, then, is the Court to make of this farrago of evidence? 

3. First, as already noted, there is no reliable evidence concerning Mr Stradford’s income in the years immediately preceding his incarceration.  Putting to one side his manifestly unreliable tax returns for the 2017 and 2018 financial years, Mr Stradford’s tax returns tended to suggest that his taxable income never rose higher than $100,000 between 2001 and 2016.  Statements on oath made by him in documents filed in the Circuit Court proceedings suggested that Mr Stradford’s income during 2017 was next to nothing – either nil (as at April 2017), or an average weekly income of just over $1,000 by about October 2017.

4. Second, in the period leading up to his incarceration, Mr Stradford gave evidence that he had effectively stopped working so he could focus on his family law proceedings.  The effect of his evidence was that he had made no active attempt to obtain further work until October 2020, after the family law proceedings in the Circuit Court had been finalised.  Mr Stradford did not contend, at least clearly or explicitly, that the fact that he did not obtain employment until October 2020 was attributable to the injury that he received as a result of his incarceration.  

5. Third, from February 2021, Mr Stradford began to receive income from both Freedom Money and Propertybuyer.  The income he received from those sources, if annualised, would have represented a taxable income exceeding $100,000.  More importantly, from 1 July 2021, Mr Stradford received very substantial payments of commission from Propertybuyer.  Those payments, if annualised, represented a taxable income well exceeding $300,000.  The evidence, such as it was, did not suggest that the income that Mr Stradford had received, and was continuing to receive, from Propertybuyer was less than the income that Mr Stradford had received from his various endeavours at any time prior to his imprisonment and injury.  Indeed, the evidence, such as it was, tended to suggest that Mr Stradford was earning more from his engagement with Propertybuyer than he had ever earnt before, at least on a regular basis.

6. In my view, the evidence tends strongly against a finding that, to the extent that Mr Stradford suffered an impairment to his earning capacity as a result of the post-traumatic stress disorder and depression that resulted from his imprisonment, that impairment did not result in any financial loss to Mr Stradford.  Moreover, in the absence of any reliable evidence that Mr Stradford’s successful engagement with Propertybuyer was likely to end, or was an aberration, the evidence does not support a finding that the impairment to Mr Stradford’s earning capacity was likely to result in any financial loss or damage into the future.  As Heydon JA noted in Moss, “[w]here there is impairment in earning capacity it will usually be reflected in financial loss before the trial” (at [64]). The problem for Mr Stradford is that the evidence simply does not support a finding that he suffered any financial loss before the trial. Nor does the evidence provide any real or firm basis for a finding that he is likely to suffer any financial loss arising from any loss or diminution of earning capacity in the future.

7. I am conscious that the authorities tend to suggest that, where there is some evidence that a plaintiff’s earning capacity has been impaired, it would generally be wrong to award no damages, or only nominal damages, unless the Court is confident that no financial loss has, or is likely to be suffered as a result of that impairment.  That said, Mr Stradford bore the onus of proving, on the balance of the probabilities, not only that he suffered an impairment to his earning capacity, but that that impairment resulted, or was likely to result, in a financial loss to him.

8. Despite my considerable misgivings concerning the state of the evidence as to whether the impairment to Mr Stradford’s earning capacity was productive, or was likely to be productive, of any financial loss to him, I am prepared to accept that Mr Stradford might at some point in the future suffer some financial loss.  For the reasons that follow, however, I consider that the likelihood of Mr Stradford suffering a financial loss arising from his impairment is fairly low and that any such financial loss would be fairly minimal.  I do not accept that Mr Stradford has suffered, or is likely to suffer in the future, any persistent, ongoing, or large financial loss arising from the psychiatric injury he suffered as a result of his imprisonment.   

   What is the appropriate assessment of damages for loss of earning capacity?

9. The authorities suggest that, while the evidence may be imprecise, I must nevertheless do my best to arrive at a figure that would compensate Mr Stradford for the financial loss he might suffer as a result of the impairment of his earning capacity.  As discussed earlier, the authorities also indicate that the assessment of damages involves an evaluation of possibilities or even judicial guesswork.  That may be so, however the state of the relevant evidence in this matter is such that I would liken my task in assessing damages for impairment of earning capacity to that of “a blind man looking for a black hat in a dark room”: cf Mills v Stanway Coaches Ltd [1940] 2 KB 334 at 349; 2 All ER 586; referred to by Windeyer J in Australian Iron & Steel Ltd v Greenwood (1962) 107 CLR 308 at 326; [1962] HCA 42.

10. I should first squarely address Mr Stradford’s submissions concerning the assessment of damages for loss of earning capacity.  As noted earlier, in his final submissions Mr Stradford effectively abandoned his case in respect of damages for loss of earning capacity that had occupied much time at trial.  In particular, he abandoned, for good reason, Ms Bossert’s evidence and analysis based on the difference between what was assumed or believed to be Mr Stradford’s income prior to the injury and what was assumed or believed to be his income after the injury up to trial.  Instead, it was submitted that Mr Stradford’s financial damage resulting from his loss of earning capacity over his working life was $800,000 based on a “notional income” of $140,000, a 50% reduction in earning capacity, an uplift of $200,000 and a discount of $200,000 for vicissitudes.    

11. Mr Stradford’s new case concerning the assessment of damages for loss of earning capacity had almost as little merit as the case he put at trial.  It is not supported at all by the evidence.

12. First, the assumption of a notional income of $140,000 per annum – the income Mr Stradford would supposedly have continued to earn but for the injury he sustained as a result of his imprisonment – is unrealistic and not supported by the evidence.  As noted earlier, Mr Stradford plucked the figure of $140,000 from job market statistics in Mr Benjamin’s report. 

13. It was somewhat ironic that Mr Stradford ultimately came to embrace the job market statistics in Mr Benjamin’s report.  Mr Benjamin had included those statistics in his report in an endeavour to calculate a notional income given the paucity and unreliability of the objective information concerning the income that Mr Stradford had actually earned prior to his imprisonment.  Mr Benjamin made it clear that he did not rely entirely on the statistics.  He did, however, express the opinion, based on the statistics, that a person “working full time in the real estate industry as a real estate agent or principal, could reasonably expect to derive pre-tax earnings of around $100,000 to $140,000”.  Mr Benjamin adopted $120,000 as the mid-point of that range.

14. Mr Benjamin was cross-examined about his reliance on the job statistics.  Among other things, it was put to Mr Benjamin that the activity in which Mr Stradford had most recently been engaged in the real estate industry (though it was put to Mr Benjamin as an assumption) was “not a typical real estate agent model”.  Mr Benjamin’s response was that he could not comment because he was not an expert in the real estate industry.  Ms Bossert, however, expressed the view, based on her understanding of what Mr Stradford’s past business activities had involved, that Mr Stradford’s activities did not fit well within any of the job descriptions in the job market surveys and that his activities were “quite different to” a more typical real estate agent’s career or job description.  While Ms Bossert also agreed that she had no particular expertise in respect of job descriptions in the real estate industry, nevertheless there appeared to be some merit in her general observation that Mr Stradford’s job history was fairly unique and fairly far removed from that of a typical real estate agent or agency principal.

15. In my view, the job statistics in Mr Benjamin’s report provide a fairly unsatisfactory and unreliable basis for estimating what Mr Stradford’s income was likely to be in the future had he not been injured.  Prior to effectively ceasing work as a result of his disputes with his then wife, Mr Stradford had been mostly self-employed, or had effectively operated his own businesses through various corporate entities, which he owned, part-owned, or controlled.  None of those businesses could fairly be described as a typical real estate agency business.  Mr Stradford’s business activities had been fairly eclectic, if not somewhat haphazard and bespoke.  Some of his business activities had been successful, other not so.  Mr Stradford’s income from those activities was far from steady or regular.     

16. The suggestion that a salary of $140,000 reflected the sort of income Mr Stradford had received in the past and was likely to have continued to earn into the future had he not been injured was also inconsistent with the evidence, such as it was, in relation to what Mr Stradford had actually earned in the years preceding his injury.  As discussed in detail earlier, the income that Mr Stradford declared in his tax returns between 2001 and 2016 largely ranged between $10,000 and $40,000.  There was no sound basis to conclude that those relatively meagre income declarations were the result of income-splitting or, for that matter, underreporting.  Mr Stradford did not himself suggest that he had underreported his income.  As also discussed earlier, the evidence concerning Mr Stradford’s earnings in 2017 and 2018 was also particularly unreliable.  According to the affidavit evidence filed by Mr Stradford in his family law proceedings, by early to mid-2017 his income was very modest indeed.

17. I also reject the contention that Mr Stradford suffered a 50% diminution of his earning capacity as a result of the injury he suffered because of his incarceration.  Mr Stradford submitted that that contention was supported by the evidence of Dr Foxcroft and Dr Harden.  I disagree.  The evidence of Dr Foxcroft and Dr Harden provided limited, if any, support for that contention.   

18. It may be accepted that both Dr Foxcroft and Dr Harden assessed Mr Stradford as having a class 3 “moderate impairment” in respect of adaptation.  As set out earlier in these reasons, the example indicators for such an assessment included “can not work at all in the pre-injury position; only able to work less than 20 hours a week in a different position where performance of the relevant duties requires less skill or is otherwise less demanding, for example, less stressful”. It may also be accepted that in his report Dr Harden said “[i]t is likely that he [Mr Stradford] would be able to work in a less demanding role for less than 20 hours a week”. 

19. I do not, however, accept that either the class 3 assessment by Dr Foxcroft and Dr Harden, or Dr Harden’s statement about the hours per week that Mr Stradford would be able to work, constitute an opinion that Mr Stradford had suffered a 50% impairment of his capacity to work or earn.  Neither Dr Foxcroft nor Dr Harden expressed their opinions in terms of capacity to work.  Nor were they directly questioned about capacity to work when they gave oral evidence.  It was certainly not put to them that Mr Stradford had suffered a 50% impairment in respect of his capacity to earn, or that such a conclusion could somehow be extrapolated from their apparent acceptance that Mr Stradford was only able to work in a less demanding position for less than 20 hours a week.  Extrapolating a 50% reduction in earning capacity from that assessment would require a number of assumptions to be made, including that Mr Stradford would otherwise have worked standard 40 hour weeks and that there was a linear relationship in Mr Stradford’s line of work between hours worked and income.  There was no evidence capable of establishing either of those assumptions.  

20. In any event, for the reasons given in detail earlier, evidence adduced at trial clearly supported the inference that Mr Stradford was not entirely frank or forthcoming with Dr Foxcroft and Dr Harden in respect of his recent employment experiences, particularly with Propertybuyer.  Mr Stradford did not tell either psychiatrist that he had in fact been working for up to 40 hours per week and that he had achieved success and fulfilment in his role at Propertybuyer.  That omission undoubtedly affected both Dr Foxcroft’s and Dr Harden’s impairment assessment in the adaptation or employability functional area.  It is highly doubtful that either psychiatrist would have arrived at a class 3 assessment if Mr Stradford had been frank and honest with them.

21. The contention that Mr Stradford had suffered a 50% impairment of his capacity to earn is also inconsistent with the objective evidence concerning Mr Stradford’s employment after his injury, in particular with Propertybuyer.  Even accepting that Mr Stradford continued to suffer some issues with his memory, mood and concentration during his employment with Propertybuyer, he was nonetheless able to succeed and prosper in that role.  If Mr Stradford had continued to suffer memory, mood and concentration issues, he was apparently well-able to overcome those difficulties and prosper in his employment. 

22. The contention that Mr Stradford will continue to suffer a constant 50% impairment in his earning capacity until his retirement is also inconsistent with Dr Harden’s more positive prognosis in respect of Mr Stradford’s condition.  For the reasons given in detail earlier, I prefer Dr Harden’s more optimistic prognosis to Dr Foxcroft’s demonstrably unduly pessimistic prognosis.  Mr Stradford’s condition had significantly improved by September 2018.  While Dr Harden was understandably cautious and indicated that the longer term prognosis was hard to predict, he was nonetheless hopeful that there would be a steady ongoing improvement in Mr Stradford’s condition.  Had Dr Harden been provided with accurate information concerning Mr Stradford’s successful and fulfilling employment with Propertybuyer, his prognosis may have been even more optimistic.                    

23. In all the circumstances, I do not accept that Mr Stradford has suffered anything like a 50% reduction in his earning capacity, let alone that such an impairment will persist well into the future.

24. Two final points should be made concerning Mr Stradford’s submission that $800,000 was a fair or reasonable estimate of the loss he has suffered as a result of the impairment of his earning capacity. 

25. First, Mr Stradford’s final calculation was arrived at by adding the sum of $200,000 to the calculation of his estimated loss of income.  The basis for that addition was said to be that the entries in the bank statements of the companies through which Mr Stradford operated his businesses, together with Mr Stradford’s optimistic evidence of future projects which he might be able to exploit, indicated that Mr Stradford’s income may in fact have been more than $140,000 per annum.  I reject the submission that the bank statements, alone or in combination with Mr Stradford’s evidence, can somehow be used in an “indicative” way to support the addition of $200,000 to the estimation of Mr Stradford’s financial loss.  The bank statements included a hotchpotch of personal and business credits and debits, as well as many entries for which there was no reliable explanation.  Mr Stradford’s optimism concerning future projects must also be taken with a grain of salt given some of his past business failures and the notorious vagaries of the property industry, including on the Gold Coast.  

26. Second, as noted earlier, Mr Stradford suggested that, after including an additional $200,000 to the calculation to supposedly make up for an under-estimation of future income, the same amount should then be deducted from the calculation for “vicissitudes”.  A deduction for “vicissitudes” is common when assessing damages for future economic loss giving that it involves predicting what might happen in the future.  The deduction is intended to take into account the fact that events may occur in the future which would have the effect of reducing the plaintiff’s likely income.  The conventional or customary discount is 15%: see, for example, FAI Allianz Insurance Ltd v Lang (2004) 42 MVR 482; [2004] NSWCA 413 at [18]; Romig v Tabcorp Holdings Ltd [2014] QSC 249 at [79].

27. The Commonwealth submitted, however, that the deduction for vicissitudes in this matter should be far greater than the conventional discount and more than the 20% discount suggested by Mr Stradford.  In the Commonwealth’s submission, the discount for vicissitudes in this case, if it came to it, should be 33% having regard to the fact the real estate business is notoriously risky, as evidenced by Mr Stradford’s own career in that industry, and because Mr Stradford’s prognosis may be overly pessimistic.  For reasons that will become apparent, it is unnecessary for me to reach a concluded position in relation to any discount for vicissitudes.  If it had come to it, however, I would have considered it appropriate to apply a very large discount for vicissitudes, particularly given the somewhat chaotic nature of Mr Stradford’s pre-injury work history and the uncertainties and unpredictable nature of the real estate industry generally.

28. I accept that a common method of assessing the financial loss caused by an impairment to earning capacity is to: first, assume or estimate the income that the plaintiff would have received but for the injury; second, assume or estimate, in percentage terms, the extent to which the plaintiff’s earning capacity was impaired; and third, calculate the future loss over the plaintiff’s work life based on the those two figures and, if necessary, taking into account tax and interest rates.  That, however, is not the only way to assess the financial loss arising from an impairment to earning capacity.  Nor is it necessarily the most appropriate method.  Much will depend on the circumstance of the case and the available evidence.

29. In this matter, it is very difficult to come up with an estimate of the amount that Mr Stradford was likely to have earnt in the future but for his injury.  There are simply too many uncertainties and vagaries.  Perhaps more significantly, it is even more difficult to estimate, in percentage terms, the extent the impairment to Mr Stradford’s earning capacity going forward, let alone arrive at a percentage figure representing the impairment which remains stable until the end of Mr Stradford’s working life.  Any such figure in the circumstances of this case would in reality be the product of little more than guesswork or speculation dressed up as an estimate.  In my view, the most that can be said, based on the evidence, is that Mr Stradford might suffer some very modest or minor impairment in his earning capacity within the next few years and that any such impairment is likely to only manifest itself in a relatively small financial loss.  

1. It my opinion it would be entirely inappropriate in this case to assess Mr Stradford’s financial loss arising from the impairment to his earning capacity by conjuring up a percentage figure representing the impairment and applying that to a rough guess of what he might have earned but for the injury.  I use the words “conjuring” and “guess” advisably.  That is all that I would be doing if I came up with a percentage figure representing the impairment and a figure for expected future earnings.  I propose instead to award a fairly nominal sum of $50,000 as, in effect, a buffer to compensate Mr Stradford for some fairly minor impairment to his earning capacity that he might experience in the future.   

   Conclusion in respect of damages for loss of earning capacity

2. I have concluded, not without some considerable doubts, that Mr Stradford is entitled to an award of damages to compensate him for financial losses that might arise from an impairment to his earning capacity resulting from his psychiatric injury.  I have, however, concluded that the appropriate award of damages in that regard is the fairly modest figure of $50,000. 

   Causation – is the Commonwealth liable for damages arising from Mr Stradford’s injury?

3. The final issue that must be determined arises from the Commonwealth’s submission, at the very heel of the hunt, that it was not liable for any loss arising from Mr Stradford’s psychiatric injury because it had not been shown that the injury had been caused by the very limited period during which Mr Stradford was detained by the MSS guards.  In the Commonwealth’s submission, Mr Stradford had not discharged his onus of proving that the period during which he was detained by the MSS guards was a cause of his injury.  That was said to be because Mr Stradford “gave no evidence of experiencing the Commonwealth custody as a discrete stressor”.  It was also submitted that, while Dr Foxcroft and Dr Harden may have agreed that Mr Stradford’s psychiatric injury related to his imprisonment, there was “no disaggregation of the legally and factually distinct periods of time” during which Mr Stradford was imprisoned.  The evidence suggested, so it was submitted, that Mr Stradford’s psychiatric injury was solely caused by his imprisonment by the Queensland Police and Queensland Corrective Services officers.

4. It may readily be accepted that Mr Stradford was only detained by the MSS guards for a relatively short period of time.  It may also be accepted that Mr Stradford did not specifically or explicitly state, that any specific actions by the MSS guards caused him any particular distress.  I do not, however, accept that there was insufficient evidence to support a finding that Mr Stradford’s detention by the MSS guards was at least a cause of his injury.  Mr Stradford’s unchallenged evidence was that, after the Judge imposed the sentence of imprisonment, the MSS guards escorted him down to the cells, required to take off his cufflinks, shoes and belt and then placed him in a small cell.  When asked what he was feeling the time, Mr Stradford said: “[s]hock, fear, thinking about how much I must have let everybody down and what’s going to happen with my kids, what’s going to happen with my fiancée; that sort of stuff”.  Mr Stradford’s evidence in that regard was not challenged in cross-examination.  Nor was it put to Mr Stradford in cross-examination that his time in the effective custody of the MSS guards was not a “discrete stressor”.            

5. As for the evidence of the psychiatrists, it may be accepted that, when expressing the opinion that Mr Stradford’s post-traumatic stress disorder was caused by his imprisonment, they did not distinguish between Mr Stradford’s imprisonment by the MSS guards, as opposed to his imprisonment by the Queensland Police and Queensland Corrective Services officers.  Nor did they specifically state that Mr Stradford’s detention by the MSS guards was a cause of his psychiatric injury.  That said, the psychiatrists did not solely attribute the injury to Mr Stradford’s time at the Brisbane watch house, or the Brisbane Correctional Centre.  It was, of course, open to the Commonwealth to cross-examine Dr Foxcroft and Dr Harden concerning the cause or causes of Mr Stradford’s psychiatric condition.  It did not do so.  The Commonwealth, through its counsel, could have put to the psychiatrists that they did not, or could not, say that Mr Stradford’s detention by the MSS guards was a cause of his injury.  That proposition was not put to the psychiatrists.  Indeed, the suggestion that the period during which Mr Stradford was detained by or on behalf of the Commonwealth was not a cause of his injury was raised for the very first time in the Commonwealth’s oral closing submissions.

6. In my view it is open to infer from the evidence as a whole that Mr Stradford’s detention by the MSS guards in the immediate aftermath of the making of the imprisonment order by the Judge was at the very least a cause of his psychiatric injury.  I reject the Commonwealth’s submission to the contrary.       

   SUMMARY – ASSESSMENT OF DAMAGES

7. The compensatory damages jointly payable by the Judge and the Commonwealth for deprivation of Mr Stradford’s liberty are assessed at $35,000.

8. The compensatory damages jointly payable by the Judge and Queensland for deprivation of Mr Stradford’s liberty are assessed at $165,000.

9. Exemplary damages payable by the Judge in respect of the deprivation of Mr Stradford’s liberty are assessed at $50,000.

10. The damages jointly and severally payable by the Judge, the Commonwealth and Queensland in respect of the personal injury suffered by Mr Stradford as a result of his unlawful imprisonment are assessed at $9,450.

11. The damages jointly and severally payable by the Judge, the Commonwealth and Queensland in respect of Mr Stradford’s financial loss arising from future loss of earning capacity as a result of his injury are assessed at $50,000.

    DISPOSITION

12. Judgment will be entered in favour of Mr Stradford against the Judge, the Commonwealth and Queensland jointly and severally for personal injury and loss of earning capacity in the amount of $59,450.

13. Judgment will be entered in favour of Mr Stradford against the Judge and the Commonwealth jointly for general and aggravated damages for false imprisonment and deprivation of liberty in the amount of $35,000 plus interest under s 51A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) from 6 December 2018 to the date of judgment at the pre-judgment rates specified in the Interest on Judgments Practice Note (GPN-INT).

14. Judgment will be entered in favour of Mr Stradford against the Judge and Queensland jointly for general and aggravated damages for false imprisonment and deprivation of liberty in the amount of $165,000 plus interest under s 51A of the FCA Act from 6 December 2018 to the date of judgment at the pre-judgment rates specified in the Interest on Judgments Practice Note (GPN-INT).

15. Judgment will be entered in favour of Mr Stradford and against the Judge for exemplary damages for false imprisonment and deprivation of liberty in the amount of $50,000.

16. I am unable to see any reason why the Judge, the Commonwealth and Queensland should not be ordered to pay Mr Stradford’s costs of the proceeding as agreed or taxed.  Mr Stradford, however, has requested to be heard further in respect of the appropriate costs order.  I will accordingly reserve on the question of costs.  If the parties are unable to agree on the appropriate order as to costs, the matter should be relisted so arrangements can be made for the hearing of further submissions in respect of that issue.

I certify that the preceding eight hundred and fifty-two (852) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.

Associate:

Dated:       30 August 2023