In a recent decision of the Federal Court of Australia in Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 (30 August 2023), damages were awarded jointly and severally as against a Judge of the Federal Circuit Court of Australia, the Commonwealth and the State of Queensland for false imprisonment arising from the plaintiff having being found during a hearing to be in contempt, and then ordered imprisoned. Critical in the outcome were findings that an order of an inferior court judge infected by manifest jurisdictional error were void ab initio not only upon being set aside, and that judicial immunity is not afforded such judge in such circumstances. Wigney J wrote:
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.
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19 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.
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83 Mr Stradford contended that the Judge lacked power to make the imprisonment order in the circumstances because he did not comply with the provisions of Pts XIIIA and XIIIB of the Family Law Act. The requirements of Pts XIIIA and XIIIB of the Family Law Act are discussed in general terms in Stradford at [13]-[15], [18] and [67]-[70]. There could be little doubt that the Judge had no regard whatsoever to the provisions in those Parts of the Family Law Act. He was either entirely ignorant of the existence of those provisions or chose to completely ignore them.
84 Part XIIIA sets out a regime for the imposition of sanctions in respect of the contravention of orders under the Family Law Act, which included orders made under the Family Law Rules 2004 (Cth) (FamL Rules) and orders made by the Circuit Court under the related FCC Rules: s 112AA and s 4(3)(e) and (f) of the Family Law Act. While it is somewhat unclear, the relevant disclosure orders made by the Judge must have been made under either the FamL Rules (see rr 1.10(1) and 13.04) or the FCC Rules (see rr 14.04 and 24.03). Either way, the order must be taken to be an order made under the Family Law Act and therefore subject to the provisions in Pt XIIIA.
85 Provisions in Pt XIIIA require that, before a court imposes a sanction on a person for contravening an order, the court must find: first, that the person intentionally failed to comply with the order, or made no reasonable attempt to comply with the order (s 112AB(1)(a) of the Family Law Act); and second, the contravention occurred without reasonable excuse: s 112AD(1) of the Family Law Act. The making of findings in respect of those matters is in effect a mandatory precondition to the imposition of sanctions for non-compliance of orders pursuant to Pt XIIIA of the Family Law Act. The Judge made no such findings.
86 Perhaps more significantly, s 112AD(2) of the Family Law Act specified the sanctions that a court was permitted to impose for contravening an order. Those sanctions included imprisonment. However, s 112AE(2) provided that a court was not permitted to impose a sentence of imprisonment for contravening an order unless the court was satisfied that “in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention pursuant to any of the other paragraphs of subsection 112AD(2)”. It is abundantly clear that the Judge did not turn his mind to that issue. Indeed, as the FamCA Full Court effectively found, the Judge pre-judged imprisonment as the punishment before his Honour even knew the particulars of the contravention or any matters in mitigation: Stradford at [21].
87 Part XIIIB of the Family Law Act, which consists of s 112AP, deals specifically with contempt of court. Section 112AP(1) provides that the section applies to a contempt of court that either “does not constitute a contravention of an order under this Act” or “constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court” (emphasis added). Plainly the contempt for which the Judge imprisoned Mr Stradford allegedly involved a contravention of an order under the Family Law Act. It follows that, for s 112AP to apply, the Judge was required to find that the contravention involved a “flagrant challenge to the authority of the court”. His Honour made no such finding. And as the FamCA Full Court found, it is “difficult to envisage a case where failure to comply with orders for disclosure could be said to involve a flagrant challenge to the authority of the Court or where an established failure to fully disclose could be other than a contravention covered by Pt XIIIA of the Act and not Pt XIIIB”: Stradford at [68].
88 The Judge did not dispute that he did not follow or comply with the requirements of either Pt XIIIA or s 112AP of the Act. Nor did the Commonwealth nor Queensland. The Judge and the Commonwealth submitted, however, that the failure to follow or comply with those requirements did not amount to an error because the Judge was empowered to deal with Mr Stradford for contempt pursuant to s 17 of the FCC Act, which does not prescribe or mandate any of the requirements or limitations found in Pt XIIIA and s 112AP of the Family Law Act.
89 Section 17 of the FCC Act provided as follows:
(1) The Federal Circuit Court of Australia has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.
(2) Subsection (1) has effect subject to any other Act.
(3) The jurisdiction of the Federal Circuit Court of Australia to punish a contempt of the Federal Circuit Court of Australia committed in the face or hearing of the Federal Circuit Court of Australia may be exercised by the Federal Circuit Court of Australia as constituted at the time of the contempt.
Note: See also section 112AP of the Family Law Act 1975, which deals with family law or child support proceedings.
90 Section 35 of the Family Law Act was in relevantly similar terms to s 17(1) of the FCC Act.
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THE LIABILITY OF THE JUDGE FOR FALSE IMPRISONMENT
171 As has already been noted, there could obviously be no dispute that Mr Stradford was imprisoned. There was also no dispute that the Judge’s conduct in making the imprisonment order and issuing the warrant was the direct cause of Mr Stradford’s imprisonment. Mr Stradford was imprisoned from the date that the Judge made the imprisonment order and issued the warrant (6 December 2018) until the date that the Judge stayed the imprisonment order and directed that Mr Stradford be released (12 December 2018), a total of seven days.
172 The critical issue is whether there was lawful justification for that imprisonment.
Lawful justification
173 Both the Judge and the Commonwealth contended that there was lawful justification for Mr Stradford’s detention. They obviously did not dispute that the FamCA Full Court in Stradford set aside both the declaration and order of the Judge pursuant to which he had been imprisoned. They also conceded that the declaration and order were invalid and vitiated by jurisdictional error. That concession was properly made.
174 There could be little doubt that the Judge had the jurisdiction to entertain the matter between Mr and Mrs Stradford, and had the power to deal with any alleged contempt by Mr Stradford in the context of that litigation. In making the imprisonment order, however, the Judge acted outside or in excess of his jurisdiction by, among other things: making the imprisonment order and issuing the warrant without first finding that Mr Stradford was in contempt; failing to make findings that were necessary before the sanction of imprisonment could be imposed pursuant to the provisions in Pt XIIIA and Pt XIIIB of the Family Law Act; failing to comply with the procedure mandated by the FCC Rules for dealing with allegations of contempt; and denying procedural fairness to Mr Stradford in a manner described by the FamCA Full Court in Stradford as amounting to a “gross miscarriage of justice” (at [73]). Those errors unquestionably constituted jurisdictional errors.
175 The thrust of the Judge’s and the Commonwealth’s contention that the Judge’s imprisonment order and warrant nonetheless provided lawful justification for the imprisonment of Mr Stradford was that the order and warrant were valid until set aside by the FamCA Full Court. They submitted that the source of the Circuit Court’s power to punish for contempt carried with it the power to make orders which were valid until set aside. The Constitution was said to be the source of the Circuit Court’s power to punish for contempt, because the power to punish for contempt was said to be a feature of courts established under Ch III of the Constitution and the Circuit Court was a Ch III court. They also appeared to rely on the fact that s 17 of the FCC Act provided that the Circuit Court’s powers to punish for contempt were the same as the powers that the High Court has to punish for contempt. It followed, in their submission, that when the Circuit Court exercises its jurisdiction under s 17, it exercises the jurisdiction of a superior court, or exercises its jurisdiction in effect as a superior court, or in the capacity of a superior court. It followed, so the Judge and the Commonwealth submitted, that contempt orders made by the Circuit Court are valid until set aside, which is the position that would apply in the case of a superior court.
176 The starting point in resolving this issue is to consider whether orders made by an inferior court generally are valid until set aside. Consideration can then be given to whether contempt orders made by an inferior court, or the Circuit Court specifically, fall into a different category.
Are orders made by an inferior court valid until set aside?
177 The first question, shortly stated, is whether, as a general proposition, orders made by an inferior court are valid until set aside, even if they are infected by jurisdictional error. The short answer to that question is “no”.
178 There is no doubt that orders made by a superior court are valid until set aside: New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [38]. The position is, however, different in the case of an inferior court, like the Circuit Court. As Gageler J explained in Kable (at [56]):
There is, however, a critical distinction between a superior court and an inferior court concerning the authority belonging to a judicial order that is made without jurisdiction. A judicial order of an inferior court made without jurisdiction has no legal force as an order of that court. One consequence is that failure to obey the order cannot be a contempt of court. Another is that the order may be challenged collaterally in a subsequent proceeding in which reliance is sought to be placed on it. Where there is doubt about whether a judicial order of an inferior court is made within jurisdiction, the validity of the order “must always remain an outstanding question” unless and until that question is authoritatively determined by some other court in the exercise of judicial power within its own jurisdiction.
(Footnotes omitted)
179 Similarly, in Director of Public Prosecutions (NSW) v Kmetyk (2018) 85 MVR 25; [2018] NSWCA 156, Leeming JA (with whom Meagher JA and Sackville AJA agreed) held that orders made by the District Court of New South Wales were vitiated by jurisdictional error and, because the District Court was an inferior court, those orders were “nullities” (at [43]). Justice Leeming cited Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 in support of that conclusion.
180 It may be accepted that there may be issues surrounding the use of the words “nullity”, “void” and “voidable” in this context: cf Kable at [21]-[22] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). Be that as it may, the issue, in the present context, is whether the Judge’s imprisonment order lacked legal force such as to provide a lawful basis for Mr Stradford’s imprisonment. The better view is that, whatever issues may arise in respect of the use of words like “nullity”, “void” and “voidable”, an order made by an inferior court which is infected by jurisdictional error has no legal force or effect from the outset.
181 In Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 272 CLR 33; [2021] HCA 2, the High Court considered, among other things, the legal effect of an order made by the Land Court of Queensland, an inferior court. That order had been set aside on the basis that it was affected or infected by apprehended bias and a denial of procedural fairness on the part of the court. The plurality (Kiefel CJ, Bell, Gageler and Keane JJ) said as follows as to whether the order only lacked legal force when it was set aside (at [48]):
The circumstance that the Land Court has been established as an inferior court, as distinct from a superior court, means that failure to comply with a condition of its jurisdiction to perform a judicial function renders any judicial order it might make in the purported performance of that judicial function lacking in legal force. That is so whether or not the judicial order is set aside.
(Footnotes omitted)
182 The Judge and the Commonwealth relied on the following passage from the judgment of McHugh JA (with whom Hope JA agreed) in Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357:
If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if the order is of a kind within the tribunal’s power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed.
183 That passage from Mayas was subsequently cited by McHugh J in Pelechowski in support of the proposition that “[a] long line of cases establishes that an order made by an inferior court, such as the District Court, will be null and void if that court did not have jurisdiction to make the order” (emphasis added). The passage from Mayas upon which the Judge and the Commonwealth rely has been understood and applied as drawing a distinction between cases where the order made by the inferior court was made within jurisdiction, and those where the error was infected by jurisdictional error: see, for example, Ho v Loneragan [2013] WASCA 20 at [32]-[35]; Firth v Director of Public Prosecutions (NSW) [2018] NSWCA 78 at [19]-[20]. As noted earlier, in Kmetyk, Leeming JA cited Pelechowski (and therefore, in effect, Mayas) in support of the conclusion that orders made by an inferior court which were vitiated by jurisdictional error were nullities. It follows that the Judge’s and the Commonwealth’s reliance on Mayas was misplaced.
184 The Circuit Court was an inferior court. The Judge’s imprisonment order was infected by jurisdictional errors. Subject to the contention advanced by the Judge and the Commonwealth that the imprisonment order should be approached differently because it was made on the basis of the Circuit Court’s contempt powers, the order lacked legal effect from the outset and provided no lawful justification for Mr Stradford’s imprisonment.
Was the imprisonment order nevertheless valid until it was set aside?
185 The Judge and the Commonwealth submitted that the imprisonment order was valid until set aside, despite the fact that the Circuit Court was an inferior court. They did not go so far as to say that all orders made by the Circuit Court are valid until set aside. Apart from their reliance on Mayas, they did not appear to directly challenge the general proposition, supported by the authorities referred to earlier, that orders made by inferior courts which are infected by jurisdictional error lack legal force whether or not they are set aside. Rather, they submitted that the imprisonment order was of a different nature because it was made in exercise of the Circuit Court’s contempt powers. That was said to be so for two reasons.
186 First, they submitted that the Circuit Court had the power to punish for contempt by virtue of it having been invested with the judicial power of the Commonwealth. They submitted, relying on Re Colina, that the power to punish for contempt was an attribute of the judicial power of the Commonwealth which was vested in the Circuit Court as a court under Ch III of the Constitution. That amounted, in effect, to a submission that the Circuit Court had a constitutionally implied power to punish for contempt. That implied power, so it was submitted, was not subject to the provisions of Pt XIIIA and Pt XIIIB of the Family Law Act. Moreover, it followed that orders made pursuant to that power are by their nature valid until set aside.
187 Second, they appeared to rely on the fact that s 17 of the FCC Act provided that the Circuit Court’s power to punish for contempt was the “same” as that possessed by the High Court. Orders made by the High Court punishing for contempt are valid until set aside. It followed, in the Judge’s and the Commonwealth’s submission, that orders made by the Circuit Court pursuant to s 17 of the FCC Act possess the same quality. Orders made pursuant to s 17 of the FCC Act were said, in that regard, to have “superior court legal effect”.
188 I am not persuaded that there is any merit in either of the arguments advanced by the Judge and the Commonwealth in support of the proposition that orders made by the Circuit Court in the exercise of its contempt powers are valid until set aside.
189 The argument based on Re Colina relied entirely on the following short passage in the judgment of Gleeson CJ and Gummow J (at [16]):
Section 24 of the Judiciary Act and s 35 of the Family Law Act are not expressed to confer federal jurisdiction in respect of a particular species of “matter”. They set out particular powers of this Court and the Family Court and should read as declaratory of an attribute of the judicial power of the Commonwealth which is vested in those Courts by s 71 of the Constitution. The acts constituting the alleged contempts by Mr Tomey are not offences against any law of the Commonwealth. That which renders such acts (if proved) liable to punishment has its source in Ch III of the Constitution. The power to deal summarily with contempts is, to use Isaacs J’s phrase “inherent” and is “a power of self-protection or a power incidental to the function of superintending the administration of justice”.
(Footnotes omitted)
190 The Judge and the Commonwealth highlighted the statement that the powers “set out” in ss 24 and 35 of the Judiciary Act 1903 (Cth) and the Family Law Act should be “read as declaratory of an attribute of the judicial power of the Commonwealth which is vested in” the High Court and Family Court. As can be seen, however, that statement concerns the attributes of the High Court and the Family Court as repositories of the judicial power of the Commonwealth, not the attributes of all courts that may be the repositories of federal jurisdiction. Moreover, the statement must be taken as being limited to superior courts that are repositories of federal jurisdiction. That is apparent from that part of the reasoning that refers to the inherent power of courts to deal summarily with contempts. That reasoning can only apply to superior courts because inferior courts like the Circuit Court have no inherent powers: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329; [2021] HCA 6 at [26]. The Chief Justice and Gummow J emphasised that the Family Court was a superior court of record (see [15]).
191 It should also be noted that, while Hayne J agreed with the reasons of Gleeson CJ and Gummow J, McHugh J (with whom Kirby J relevantly agreed) did not (see [45]-[50] and [80]-[81]) and Callinan J did not squarely deal with the issue addressed in the reasoning upon which the Judge and the Commonwealth rely.
192 In any event, even if the passage from Re Colina relied on by the Judge and the Commonwealth provides some support for the proposition that the Circuit Court’s power to deal with contempts as conferred by s 17 of the FCC Act is declaratory of an inherent power it has as a repository of federal jurisdiction, it does not follow that orders made by the Circuit Court in the exercise of its contempt powers are somehow imbued with the characteristics of orders made by superior courts. Nor does it follow that orders made by the Circuit Court in the exercise of its contempt powers are valid until set aside. The passage from the judgment of Gleeson CJ and Gummow J says nothing at all about the nature or characteristics of orders made by Ch III courts in the exercise of contempt powers, or the effect or enforceability of such orders. Still less does that passage say anything about the effect or enforceability of orders made by Ch III courts which are inferior courts, like the Circuit Court. The Chief Justice and Gummow J said nothing concerning the contempt powers of inferior courts.
193 Another answer to the arguments advanced by the Judge and the Commonwealth based on Re Colina is that, when he made the imprisonment order, the Judge was not exercising the Circuit Court’s powers pursuant to s 17(1) of the FCC Act. Nor was he exercising any inherent or implied power of which s 17 of the FCC Act was perhaps declaratory. Rather, as discussed earlier in these reasons in the context of the errors made by the Judge, while he may not have known or appreciated it, his Honour was exercising, or at least purporting to exercise, the court’s powers under either Pt XIIIA or Pt XIIIB of the Family Law Act. Those provisions constituted a code for dealing with contempts when the Circuit Court was exercising jurisdiction under the Family Law Act. The operation of those prescriptive and exhaustive provisions effectively excluded or limited any other general powers the Circuit Court may have had to deal with contempts, in particular contempt of the sort in issue in this case.
194 That also provides an answer to the argument advanced by the Judge and the Commonwealth to the effect that, because the effect of s 17 of the FCC Act was to confer on the Circuit Court the High Court’s powers to deal with contempts, the effect was that orders made in the exercise of the power in s 17 had a “superior court legal effect”. In any event, even if the Judge was exercising the Circuit Court’s power under s 17 of the FCC Act, the fact that the Circuit Court had the same power as the High Court in respect of contempts does not mean that orders made by the Circuit Court in exercise of that power are of the same nature, or have the same effect or enforceability, as orders made by a superior court. Section 17 of the FCC Act says nothing about whether orders made by the Circuit Court in the exercise of its contempt powers under that provision are valid until set aside.
195 It follows that I am not persuaded that orders made by the Circuit Court pursuant to its power to punish for contempt, particularly when those orders are made in the context of the exercise of jurisdiction under the Family Law Act, have “superior court legal effect” or are otherwise valid until set aside. The better view is that, like other orders made by an inferior court, orders made by a judge of the Circuit Court in purported exercise of the power to punish for contempt are of no legal effect if they are infected by jurisdictional error. It is not the case that such orders are, or remain, valid until set aside. It follows that the order made by the Judge to imprison Mr Stradford, infected as it was by jurisdictional error, was of no legal effect. It provided no lawful justification for Mr Stradford’s imprisonment.
Conclusion concerning the elements of the tort of false imprisonment
196 Mr Stradford was imprisoned for seven days as the direct result of the imprisonment order made, and the warrant issued, by the Judge.
197 For the reasons that have been given, there was no lawful justification for Mr Stradford’s imprisonment. The imprisonment order and warrant were invalid and of no legal effect. The contention advanced by the Judge and the Commonwealth that the order and warrant remained valid until set aside is unmeritorious and rejected. It follows that the elements of the tort of false imprisonment have been made out.
198 The only remaining issue concerning the Judge’s liability for the tort of false imprisonment is whether the Judge was immune from civil suit in respect of Mr Stradford’s imprisonment by virtue of his status as a Circuit Court judge.
JUDICIAL IMMUNITY
199 The Judge contended that Mr Stradford’s case against him must fail because he is entitled to the protection of judicial immunity. He was, he submitted, entitled to the protection of judicial immunity for two reasons.
200 The first reason was that, even if he was only entitled to the judicial immunity available to inferior court judges, the errors made by him were errors within jurisdiction and the judicial immunity available to inferior court judges is not lost as a result of such errors.
201 The second reason was that, in his submission, he was in any event entitled to the judicial immunity available to superior court judges. That immunity is only lost in circumstances where the judge acted in bad faith or knowingly without jurisdiction. No such allegation is made against him. The Judge submitted that the Court should find that there is either no distinction between the judicial immunity available to inferior and superior court judges, or if there is, that he was in any event effectively acting as a superior court judge, or was effectively exercising the powers of a superior court judge, when imprisoning Mr Stradford for contempt.
202 Mr Stradford contended that the Circuit Court was an inferior court and the Judge was an inferior court judge. There is, Mr Stradford submitted, a long line of cases that establish that an inferior court judge loses the protection of judicial immunity if the judge acts outside or in excess of jurisdiction. In Mr Stradford’s submission, the Judge was acting outside or in excess of jurisdiction, insofar as that notion or concept is understood or applied in the relevant authorities. He submitted that this Court should not depart from that long line of cases, or hold that there is no longer any distinction between the immunity available to inferior and superior court judges.
203 The first step in resolving the controversy between the parties in respect of judicial immunity is to consider and determine precisely what the authorities establish in relation to the scope of the immunity available to inferior court judges at common law. Before delving into that difficult area, two brief points should be emphasised.
204 First, as has already been noted, the Circuit Court was undoubtedly an inferior court: AAM17 at [26].
205 Second, many inferior court judicial officers are now protected by various forms of statutory immunity. For whatever reasons, judges of the Circuit Court were not protected by any statutory immunity.
The scope of judicial immunity of inferior court judges
206 It is well established that a superior court judge is not liable for anything he or she does while acting judicially, which is generally taken to mean when acting bona fide in the exercise of his or her office and under the belief that he or she has jurisdiction, though he or she may be mistaken in that belief: Sirros v Moore [1975] 1 QB 118 at 135D (Lord Denning MR); [1974] 3 All ER 776.
207 There is, however, also authority to the effect that “judges of courts other than superior courts are not immune if they act outside jurisdiction whether or not they did so knowingly (unless the excess of jurisdiction was caused by an error of fact in circumstances where the court had no knowledge of or means of knowing the relevant facts …)”: Wentworth v Wentworth [2000] NSWCA 350 at [195] (Heydon JA, with whom Fitzgerald JA and Davies AJA relevantly agreed), citing Halsbury’s Laws of England (4th ed) vol 1(1) at [216]; Abimbola Olowofoyeku, Suing Judges: A Study of Judicial Immunity (Oxford University Press, 1993) pp 64-65; and Enid Campbell, ‘Inferior and Superior Courts and Courts of Record’ (1997) 6 Journal of Judicial Administration 249 at 260. It should be noted that those parts of Heydon JA’s judgment in Wentworth v Wentworth which deal with this issue are not reproduced in the reported version of the judgment: (2001) 52 NSWLR 602.
208 Putting aside, for the moment, the issue of whether the distinction between the immunity available to superior and inferior court judges still exists, or should be changed or departed from, the thorny question is precisely what acting “outside” or “in excess of” jurisdiction means in this context. In Wentworth v Wentworth, Heydon JA suggested that the answer to that question was “obscure” (at [195]). Given the somewhat protean or chameleon-like character of the word “jurisdiction”, the safest guide would appear to be the cases in which inferior court judicial officers have been held liable in damages for consequences flowing from a purported exercise of jurisdiction held to be beyond the relevant limit: cf In re McC (A Minor) [1985] 1 AC 528 at 544F (Lord Bridge); [1984] 3 All ER 908.
209 Before embarking on a consideration of some of the key cases, three brief points should be noted.
210 First, Mr Stradford did not, as the Judge appeared to suggest, contend that an inferior court judge loses immunity from suit if the judge commits any form of jurisdictional error as that concept is understood in contemporary administrative law jurisprudence in Australia. The relevant authorities suggest that there are at least some types or categories of jurisdictional error that may not, or would not necessarily, result in an inferior court judge losing the immunity.
211 Second, Mr Stradford submitted that it was ultimately unnecessary for the Court to endeavour to determine the precise meaning, or precise metes and bounds, of the concept of “outside” or “in excess of” jurisdiction in this context. It is only necessary for the Court to determine whether the errors found to have been made by the Judge fell within the apparent metes and bounds of that concept as established in the cases. There is in my view considerable merit in that submission.
212 Third, and flowing from the second point, I do not propose to attempt to address all of the many decided cases in this area. The cases stretch back over 400 years. Rather, I propose to primarily address those cases that directly bear on the issue having regard to the particular facts and circumstances of this case, particularly those where an inferior court officer has been held liable in circumstances comparable or analogous to those in this case.
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Conclusion as to the scope of judicial immunity of inferior court judges
340 Cases stretching back over 400 years have drawn a distinction between the scope and boundaries of judicial immunity applicable to inferior court magistrates and judges, as opposed to superior court judges. While those cases are mostly English, they have been applied in some cases in Australia: see in particular Raven v Burnett and Wood v Fetherston. While the rationale or policy behind the distinction has been questioned, no case in England or Australia has authoritatively determined that the distinction has been abolished. No case in Australia has authoritatively determined that the distinction does not apply in the common law of Australia.
341 It may perhaps be accepted that the common law concerning the metes and bounds of the judicial immunity available to inferior court judges may not be entirely pellucid and to that extent may be said to be somewhat unsatisfactory. The clarity of the law in this area has not been assisted by the often unhelpful and, with the greatest respect, sometimes ill considered or inadequately reasoned obiter dicta in cases concerning statutory immunity or the immunity available to superior court judges. Be that as it may, it is necessary and incumbent on me to endeavour to distil the applicable principles from the authorities. In In re McC, Lord Bridge described that task, insofar as the common law of England was concerned, to be “daunting” (at 1 AC 537B). It is, in my view, all the more daunting insofar as the common law of Australia is concerned.
342 The principles that, in my view, emerge from the authorities concerning the scope and boundaries of the judicial immunity enjoyed by inferior court judges may be summarised as follows.
343 First, an inferior court judge may be held liable, and will not be protected by judicial immunity, where the judge makes an order in a proceeding or cause in which the judge did not have “subject-matter” jurisdiction; that is, no jurisdiction to hear or entertain in the first place. It does not matter whether the judge knew, or did not know, that he or she did not have jurisdiction to hear or entertain the proceeding. It also does not matter whether the judge believed or assumed that he or she had jurisdiction in the proceeding as a result of a mistake of fact or a mistake of law. The only exception is where the judge had no knowledge, or means of ascertaining, the fact or facts that relevantly deprived him or her of jurisdiction to hear or entertain the proceeding. The cases which support this principle include: Marshalsea; Calder v Halket; Houlden v Smith; Raven v Burnett; and Wood v Fetherston.
344 Second, in certain exceptional circumstances, an inferior court judge may be held liable, and will not be protected by judicial immunity, where the judge, despite having subject-matter jurisdiction in the proceeding, nevertherless makes an order without, or outside, or in excess of the jurisdiction he or she had to hear or entertain the proceeding.
345 Third, one of the exceptional circumstances in which an inferior court judge may lose the protection of judicial immunity and be held liable is where, despite having jurisdiction to hear or entertain the proceeding, the judge is guilty of some gross and obvious irregularity in procedure, or a breach of the rules of natural justice, other than an irregularity or breach which could be said to be a merely narrow technical. The cases which support this principle include: In re McC at 1 AC 546H-547B and R v Manchester City Magistrates’ Court at 1 WLR 671E-F.
346 Fourth, another exceptional circumstance in which an inferior court judge may be held liable is where, despite having jurisdiction to hear or entertain the proceeding, the judge acts in excess of jurisdiction by making an order, or imposing a sentence, for which there was no proper foundation in law, because a condition precedent for making that order or sentence had not been made out. The cases which support this principle include: In re McC at 1 AC 549C-D and 558; Groome v Forrester; M’Creadie v Thomson; O’Connor v Issacs; and R v Manchester City Magistrates’ Court.
347 I do not suggest that the latter two principles exhaustively define or catalogue the circumstances in which an inferior court judge, despite having subject-matter jurisdiction, may nevertheless lose the protection of judicial immunity by making an order which was without, outside, or in excess of, that jurisdiction. For reasons that will become apparent, it is unnecessary for me to go further than identifying what appear from the authorities to be the established circumstances where an inferior court judge will not be able to rely on judicial immunity to protect them from suit.
348 Before endeavouring to apply these principles to this case, it is necessary to briefly deal with the Judge’s contention that, despite being an inferior court judge, he should nevertheless have the protection afforded to superior court judges in the circumstances of this case.
Was the Judge entitled to the immunity of a superior court judge in the circumstances?
349 The Judge contended that when he imprisoned Mr Stradford, he was acting judicially in the exercise of a superior court power. That is because he was, in his submission, acting pursuant to s 17 of the FCC Act, which provided that the Circuit Court had the “same power to punish contempts of its power and authority as possessed by the High Court in respect of contempts of the High Court”. The High Court is a superior court of record. Accordingly, so the Judge submitted, the immunity that attaches to a superior court judge should apply to his exercise of that power.
350 The Judge relied, in support of that submission, on the following statement by Latham CJ in Cameron v Cole (1944) 68 CLR 571 at 585; [1944] HCA 5:
An inferior court such as a county court may be made a superior court for a particular purpose. Thus where a court is described in a statute as a branch of a principal court and is also given the jurisdiction of the Court of Chancery for purposes of bankruptcy jurisdiction, it may, though a county court (and therefore an inferior court) in its ordinary jurisdiction, be a superior court in relation to bankruptcy proceedings.
351 I am not persuaded that the Judge was acting as a superior court judge when he imprisoned Mr Stradford, or that he was entitled to the immunity afforded a superior court judge.
352 It may be accepted that, as Cameron v Cole establishes, legislation can provide that an inferior court may be deemed, or taken to be, a superior court for certain purposes. Section 17 of the FCC Act does not, however, provide, either expressly or by necessary implication, that the Circuit Court is deemed, or taken to be, a superior court when exercising the contempt power conferred on it by that provision.
353 It may also be accepted that in some circumstances where a statute confers certain specified superior court jurisdiction on an inferior court, the inferior court may, by necessary implication, be taken to be a superior court when exercising that jurisdiction. In Day v The Queen (1984) 153 CLR 475 at 479; [1984] HCA 3, the High Court held, in effect, that a sentence imposed on a person convicted on indictment by the District Court of Western Australia (an inferior court) had the same effect and operation as a sentence imposed by a superior court. That was because a provision in the District Court of Western Australia Act 1969 (WA) provided that the District Court had “all the jurisdiction and powers that the Supreme Court has in respect of any indictable offence” and that “[i]n all respects … the practice and procedure of the Court as a Court of criminal jurisdiction shall be the same as the practice and procedure of the Supreme Court in like matters”.
354 Section 17 of the FCC Act, however, is far removed from the sort of statutory provision considered in Day v The Queen. Section 17 of the FCC Act is far more confined in its scope and operation. It does not confer any jurisdiction on the Circuit Court. It simply provides that the Circuit Court has the same power to punish for contempt as the High Court. Section 17 also does not provide that, in exercising that power, the Circuit Court’s practice and procedure was the same as the High Court’s practice and procedure, or that orders made in the exercise of that power are taken to have the same effect, in terms of enforceability, as orders made by the High Court in the exercise of its contempt powers.
355 I am not persuaded that the effect of s 17 of the FCC Act is that an order made by the Circuit Court in the exercise of its contempt powers is taken or deemed to be an order of a superior court. Still less am I persuaded that the effect of s 17 of the FCC was such that a Circuit Court judge who exercises that court’s contempt powers is taken to be a superior court judge, or to be acting as a superior court judge, in particular for the purposes of judicial immunity.
356 There is, in any event, no sound basis for concluding that the Judge was exercising the power under s 17 of the FCC Act when he imprisoned Mr Stradford. Nothing that was said or done by the Judge indicates that he was exercising that power. More importantly, as discussed in detail earlier, Pt XIIIB of the Family Law Act has been held to be a “complete code for dealing with contempts”: DAI at [47], [67]. The jurisdiction that the Judge was exercising in Mr Stradford’s proceeding was jurisdiction under the Family Law Act. Accordingly, when exercising, or purporting to deal with Mr Stradford’s alleged contempt, the Judge was exercising the power in Pt XIIIB of the Family Law Act, not the powers under s 17 of the FCC Act.
357 I was not taken to any persuasive authority in support of the proposition that a judge of an inferior court should be considered to be a superior court judge, and thereby attract the immunity of a superior court judge, when exercising contempt powers conferred on the inferior court in terms similar to s 17 of the FCC Act. Nor am I satisfied that the Judge was exercising the Circuit Court’s powers pursuant to s 17 of the FCC Act when imprisoning Mr Stradford. In those circumstances, I am not persuaded that the Judge’s potential liability should be considered on any basis other than that he is entitled to the judicial immunity afforded to an inferior court judge.
Is the Judge immune from liability arising from his imprisonment of Mr Stradford?
358 Having regard to the principles applicable to the judicial immunity of an inferior court judge that I have outlined, I consider that the Judge is liable for any loss or damage suffered by Mr Stradford arising out of his unlawful imprisonment. As an inferior court judge, the Judge was not protected from liability arising from his imprisonment of Mr Stradford. That is so for a number of reasons.
359 First, while the Judge obviously had jurisdiction to hear and entertain the proceeding between Mr and Mrs Stradford, being a proceeding pursuant to the Family Law Act, it is clear that when he imprisoned Mr Stradford, purportedly for contempt, he acted without or in excess of jurisdiction. That is because, as discussed earlier in these reasons, he imposed that sanction without first finding that Mr Stradford had in fact failed to comply with the relevant orders and was in fact in contempt.
360 It may be accepted, for present purposes, that when the Judge ordered that Mr Stradford be imprisoned for contempt, his Honour did so on the basis of a mistaken belief or assumption that Judge Turner had already found that Mr Stradford had failed to comply with the disclosure orders and was therefore in contempt. The problem for the Judge, however, is that his Honour plainly had the means to ascertain whether Judge Turner had in fact made any such findings. The Judge plainly should have been aware that her Honour had made no such findings. Judge Turner had made no order or declaration to that effect and had delivered no judgment. The Judge could readily have ascertained that Judge Turner had not found that Mr Stradford had failed to comply with the disclosure orders and had certainly not made any finding that Mr Stradford was in contempt. There is no evidence to suggest that the Judge made any attempt to speak with Judge Turner or consult the court records which, no doubt, would have revealed that no such finding had been made.
361 In this respect, the circumstances of this case are entirely analogous to the circumstances in Wood v Fetherston; O’Connor v Issacs; In re McC and R v Manchester City Magistrates’ Court in particular. A finding of contempt was a condition precedent to the imposition of the sanction imposed by the Judge. There was no proper foundation in law for the making of the imprisonment order. In imposing a sentence of imprisonment in the absence of any such finding, the Judge acted without or in excess of jurisdiction in the requisite sense.
362 Second, for the reasons given earlier, as the alleged contempt by Mr Stradford was a failure to comply with orders made in the exercise of jurisdiction under the Family Law Act, the Judge was required, before imprisoning Mr Stradford, to satisfy himself of certain matters under either Pt XIIIA or Pt XIIIB of the Family Law Act.
363 If the matter were to proceed under Pt XIIIB, the Judge had to be satisfied not only that there had been a contravention of the disclosure orders, but also that the contravention involved a “flagrant challenge to the authority of the court”. The Judge made no such finding.
364 If the matter were to proceed under Pt XIIIA, the Judge had to be satisfied not only that Mr Stradford had contravened the disclosure orders, but also that he did so without reasonable excuse and that, in all the circumstances of the case, it would not be appropriate to impose one of the other sanctions provided in ss 112AD(2)(a), (b) or (c). The Judge did not satisfy himself of any of those matters.
365 The making of the required findings under either Pt XIIIA or Pt XIIIB were, in effect, conditions precedent to the Judge imposing a sentence of imprisonment. In imposing a sentence of imprisonment in the absence making any of those findings, his Honour acted without or in excess of jurisdiction in the requisite sense. There was no proper foundation in law for the making of the imprisonment order. In that regard, the circumstances of this case are again analogous to the circumstances in Wood v Fetherston, O’Connor v Issacs, In re McC, and R v Manchester City Magistrates’ Court.
366 Third, in conducting the contempt proceedings against Mr Stradford in the way he did, the Judge was guilty of a “gross and obvious irregularity of procedure”: cf In re McC at 1 AC 546H. The statutory procedure for contempt, other than contempt in the face of the court, was prescribed in r 19.02 of the FCC Rules. The procedure followed by the Judge did not comply with any of the requirements of r 19.02. There was no application in the approved form and no supporting affidavit. The Judge did not clearly advise Mr Stradford of the contempt allegation, or ask him to state if he admitted or denied that allegation. Nor did his Honour hear any evidence in support of the allegation, or determine if there was a prima facie case, or invite Mr Stradford to state his defence and, after hearing that defence, determine the charge. For the reasons given earlier, it was not open to the Judge to dispense with the procedure in r 19.02. Nor did he do so. The available inference is that he either ignored it, or proceeded in complete ignorance of it.
367 The Judge’s complete failure to comply with the procedure in r 19.02 of the FCC Rules could not possibly be seen as a “narrow technical ground”: cf In re McC at 1 AC 547A.
368 The gross and obvious irregularity of procedure that infected the Judge’s purported exercise of his contempt powers meant that he acted without or in excess of his jurisdiction in the requisite sense.
369 Fourth, the Judge was guilty of a gross denial of procedural fairness and breach of the rules of natural justice having regard not only to his complete failure to comply with the procedure in r 19.02 of the FCC Rules, which was clearly designed to ensure procedural fairness, but also more generally. As the FamCA Full Court found in Stradford, the Judge pre-judged that the alleged contravention of the order would constitute a contempt within the meaning of the Family Law Act (at [20]); pre-judged the penalty for the contravention without first knowing the particulars of the alleged contravention (at [21]); performed the roles of prosecutor, witness and judge (at [22]-[27]); and made findings concerning the alleged contravention without any evidentiary foundation (at [57]). As the FamCA Full Court said at [53]:
It is difficult to envisage a more profound or disturbing example of pre-judgment and denial of procedural fairness to a party on any prospective orders, much less contempt, and much less contempt where a sentence of imprisonment was, apparently, pre-determined as the appropriate remedy.
370 The FamCA Full Court concluded that the entire episode constituted a “gross miscarriage of justice” (at [9] and [73]).
371 Needless to say, the denial of procedural fairness in this case could not possibly be characterised as a “narrow” or “technical” breach. It constituted, at the very least, a “gross and obvious irregularity of procedure”, to use the words of Lord Bridge in In re McC (at 1 AC 546H). The result of it was that the Judge acted without or in excess of jurisdiction in the requisite sense.
372 The four findings just outlined, considered either individually or cumulatively, deprive the Judge of judicial immunity in respect of the impugned acts.
CONCLUSION – LIABILITY OF THE JUDGE
373 For the reasons given earlier, Mr Stradford established against the Judge all of the elements of the tort of false imprisonment. Mr Stradford was imprisoned as a result of the imprisonment order made, and the warrant issued, by the Judge on 6 December 2018. Mr Stradford’s imprisonment was not lawfully justified because the imprisonment order and warrant were invalid and of no effect. They were infected by manifest jurisdictional error.
374 For the reasons that have been given, the Judge was not immune from Mr Stradford’s suit on the basis of his status as an inferior court judge. That is because he is an inferior court judge and when he made the imprisonment order was made, and issued the warrant, he acted without or in excess of jurisdiction.
375 It follows that the Judge is liable to Mr Stradford in respect of the tort of false imprisonment
(emphasis added)
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A link to the full decision is here.
