From: Lionel Smith <lionel.smith@law.cam.ac.uk>
Sent: Tuesday, September 5, 2023 2:44:55 pm
To: ODG <obligations@uwo.ca>
Subject: Re: No judicial immunity for inferior court, false imprisonment

I agree with Stephen.

As a matter of constitutional history and structure, the superior courts are independent of both the executive and the legislature and are often in opposition to those bodies. They are frequently called upon to restrain the executive to act according to law, and have often been in conflict with the legislature (eg in the disputes about Hansard). Their independent role in the constitution seems to demand immunity when they are functioning in that role, just as the the executive cannot be impugned for careless government nor the legislature for careless legislation.

If the legislature creates a body to set egg prices (a staple of Canadian constitutional law), any immunity must come from an interpretation of the statute. The body has no essential constitutional role that demands immunity as a constitutional imperative. It seems no different if the legislature creates a body to resolve disputes about egg pricing, or residential rents, or what have you: on the face of it these are not courts in the historical and constitutional sense, but bodies exercising power delegated from the legislature. Of course there may be immunities if the statute so provides.

Lionel

> On Sep 5, 2023, at 21:21, Stephen Pitel <spitel@uwo.ca> 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 <gerard.sadlier@gmail.com>
> Sent: September 2, 2023 5:52 AM
> To: sbeswick <sbeswick@sjd.law.harvard.edu>
> Cc: Neil.Foster <Neil.Foster@newcastle.edu.au>; obligations <obligations@uwo.ca>
> 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 <sbeswick@sjd.law.harvard.edu> 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
>> <https://allard.ubc.ca/about-us/events-calendar/equality-under-ordinar
>> 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-impr
>> isonment-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 <Firstname.Lastname@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] <https://newcastle.edu.au/>
>>> 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 <neil.foster@newcastle.edu.au>
>>> *Date: *Wednesday, 30 August 2023 at 3:55 pm
>>> *To: *"obligations@uwo.ca" <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 <Firstname.Lastname@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] <https://newcastle.edu.au/>
>>> 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
>
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