From: Gerard Sadlier Sent: Saturday 9 September 2023 01:09 To: Stephen Pitel Cc: sbeswick; Neil.Foster; obligations Subject: Re: No judicial immunity for inferior court, false imprisonment Dear Stephen Thanks very much, apologies that I have only now picked up your email. I didn't mean to call the correctness of the Australian decision into question and indeed I should have acknowledged that the distinction between superior and inferior Courts is well established, not only as a matter of history but as a matter of authority also. My question focused more on the justification for the rule. Kind regards Ger On 9/5/23, Stephen Pitel wrote: > One source for the view that the immunity should be the same for both > is Sirros v Moore (1974) per Lord Denning. But that was rejected by > Lord Bridge in McC v Mullan (1984). He stressed the history and > therefore a need for legislative change rather than common law > evolution. However, there is at least some Canadian authority that > the immunity should be the same at common law: see Re Clendenning (1976). But it is not strong. > > In Canada, the question of immunity for inferior court judges is often > a matter for statute, with several statutes giving them an identical > immunity to that of superior court judges. See for example Ontario's > Courts of Justice Act, s 82. > > Given that the judge in question here is from an inferior court, isn't > the court's answer correct on the jurisprudence and consistent with > McC v Mullan? Why would the assumption be that in Australia at common > law there is an immunity for both levels? > > Stephen > > > Professor Stephen G.A. Pitel > Faculty of Law, Western University > (519) 661-2111 ext 88433 > President, Canadian Association for Legal Ethics/Association > canadienne pour l ethique juridique > > > -----Original Message----- > From: Gerard Sadlier > Sent: September 2, 2023 5:52 AM > To: sbeswick > Cc: Neil.Foster ; obligations > > Subject: Re: No judicial immunity for inferior court, false > imprisonment > > As a matter of history, the judicial immunity of superior Courts is > well established. As a matter of principle however, how can the > distinction between (i) the judicial immunity of superior Courts and > (ii) the lack of any similar immunity for "inferior Courts" be justified? > > Kind regards > > Ger > > On 9/1/23, Samuel Beswick wrote: >> 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 >> > r >> y-law> 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-imp >> r isonment-mr-stradford-property-dispute-second-claim >> >> Warm wishes, >> Sam >> >> On Tue, 29 Aug 2023 at 22:58, Neil Foster >> >> 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 >>> >>> [image: The University of Newcastle] >>> >>> 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 >>> >>> >>> >>> >>> >>> *From: *Neil Foster >>> *Date: *Wednesday, 30 August 2023 at 3:55 pm >>> *To: *"obligations@uwo.ca" >>> *Subject: *ODG: No judicial immunity for inferior court, false >>> imprisonment >>> >>> >>> >>> 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 >>> >>> [image: The University of Newcastle] >>> >>> 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 >>> >>> >>> >> >