Stradford (a pseudonym) v Judge Vasta

Case [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…

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AGLC
Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020
Case
[2023] FCA 1020
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Mr Stradford, a pseudonym, brought proceedings against the Judge, the Commonwealth, and Queensland, alleging false imprisonment and other torts. The dispute arose from Mr Stradford's imprisonment for contempt in a matrimonial proceeding, following his alleged non-compliance with disclosure orders. The judge's contempt declaration and imprisonment orders were later set aside due to invalidity. The court had to decide whether the imprisonment order was valid until set aside, if the judge exercised superior court powers, and if the judge's actions warranted a loss of judicial immunity. Additionally, the court examined if the security, police, and prison officers were protected from liability by the common law justification defence when executing orders from an inferior court judge. The court also considered statutory interpretation issues regarding the application of certain sections of the Criminal Code Act 1899 (Qld) and the Acts Interpretation Act 1954 (Qld). Finally, the court assessed the damages for false imprisonment, personal injury, and loss of earning capacity.

The court found that the judge's orders, being of an inferior court and vitiated by jurisdictional error, were void ab initio and of no legal effect, providing no lawful justification for imprisonment. The court also ruled that the judge's predominant purpose in making the contempt declaration and imprisonment order was not improper, and thus, the tort of collateral abuse of process was not made out. Moreover, the judge lost the protection of judicial immunity afforded to inferior court judges because he acted without or in excess of jurisdiction. As for the Commonwealth and Queensland, the court found that they were not protected by a common law justification defence, and they could not rely on a statutory defence either. Finally, the court awarded Mr Stradford damages for false imprisonment, personal injury, and loss of earning capacity, with a total of $59,450.

The court's decision established that the judge's orders were invalid and provided no lawful justification for Mr Stradford's detention. The judge was not protected by judicial immunity, and the Commonwealth and Queensland could not rely on common law or statutory defences. The court also awarded Mr Stradford damages for false imprisonment, personal injury, and loss of earning capacity, recognising the hurt and suffering he experienced due to the unlawful detention.

Orders

Orders of the court

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]

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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. 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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.