In Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 Wigney J states
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.
