From:                                                       Samuel Beswick <sbeswick@sjd.law.harvard.edu>

Sent:                                                         Friday 1 September 2023 04:45

To:                                                            Neil Foster

Cc:                                                             obligations@uwo.ca

Subject:                                                   Re: No judicial immunity for inferior court, false imprisonment

 

Neil, I always value your ODG updates and often bring them up in my torts class. This case is quite the illustration/affirmation of Dicey's principle of equality under ordinary law. Regrettably a principle that US courts have lost sight of. If you'll forgive the shameless plug, it's something I'm currently writing on and I'd welcome comments from anyone interested.

 

Also, it looks like this isn't the only false imprisonment claim the judge faces: https://www.theguardian.com/law/2023/sep/01/judge-salvatore-false-imprisonment-mr-stradford-property-dispute-second-claim

 

Warm wishes,

Sam

 

On Tue, 29 Aug 2023 at 22:58, Neil Foster <neil.foster@newcastle.edu.au> wrote:

Dear all;

Just realised that link won’t work for many! Here is the proper link: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca1020 .

Regards

Neil

 

 

NEIL FOSTER

Associate Professor, Newcastle School of Law and Justice

College of Human and Social Futures

 

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

 

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828 

Blog: https://lawandreligionaustralia.blog

 

 

The University of Newcastle
Hunter St & Auckland St, Newcastle NSW 2300

Top 200 University in the world by QS World University Rankings 2021

I acknowledge the Traditional Custodians of the land in which the University resides and pay my respect to Elders past, present and emerging. 
I extend this acknowledgement to the Worimi and Awabakal people of the land in which the Newcastle City campus resides and which I work.

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Dear Colleagues;

While only a first instance decision, the judgment in Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020  https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca1020 is worthy of noting. A litigant in family law proceedings, appearing before Judge Vasta in the Federal Circuit Court of Australia, was summarily imprisoned for about 8 days by the judge in circumstances later found on appeal to have been a serious miscarriage of justice and misuse of judicial power. Mr Stradford (a pseudonym as all litigants in the family law jurisdiction are entitled to anonymity) then sued Judge Vasta for false imprisonment and collateral abuse of power. I have been telling students the claim was unlikely to succeed due the doctrine of judicial immunity. Wigney J in the Federal Court explains why I was wrong (at least until the case goes on appeal!)

In brief, his Honour holds that the doctrine of judicial immunity only applies to superior courts, and the FCC is an inferior court (there is a comment on the status of the FCC in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329; [2021] HCA 6 at [26]). (For colleagues outside Australia, the FCC was created as a lower tier federal court with jurisdiction in minor family law matters and other federal areas.) Wigney J reviews cases from the UK and Australia going back many years, notes that there are inconsistencies in the decisions, but in the end concludes that this is the common law of Australia (and for some reason judges of the FCC do not have any specific statutory protection, though one might guess that this was because it was assumed they would be covered by a common law immunity.)

His Honour also considers in some detail which of the police and security guards who actually effected Mr Stradford’s imprisonment might have been immune from suit, and concludes that neither the court security guards who first placed him in custody, or the Queensland police officers who kept him for another week, enjoyed any immunity. The result of that finding is that the Commonwealth and the State of Queensland were vicariously liable for torts committed by those persons.

Judge Vasta was held not to be liable for collateral abuse of power, but he was liable for false imprisonment, and the security guards and police were also liable (as none of these persons could refer to a valid order of a superior court justifying their actions.) Large orders of damages were made: a total of $259,450 against the Judge and the governments for compensatory and aggravated damages (and interest), and $50,000 against Judge Vasta personally by way of exemplary damages. An astonishing case in many ways, but in response to some pretty egregious behaviour by the judge. Still, I have little doubt there are various points which will be appealed.

Regards

Neil

 

 

 

NEIL FOSTER

Associate Professor, Newcastle School of Law and Justice

College of Human and Social Futures

 

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

 

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828 

Blog: https://lawandreligionaustralia.blog

 

 

The University of Newcastle
Hunter St & Auckland St, Newcastle NSW 2300

Top 200 University in the world by QS World University Rankings 2021

I acknowledge the Traditional Custodians of the land in which the University resides and pay my respect to Elders past, present and emerging. 
I extend this acknowledgement to the Worimi and Awabakal people of the land in which the Newcastle City campus resides and which I work.

CRICOS Provider 00109J