From: Matthew
Hoyle <MHoyle@oeclaw.co.uk>
Sent: Wednesday
12 February 2025 12:31
To: Stephen
Pitel; Neil.Foster; obligations
Subject: Re:
Judicial immunity from tort actions
I
had always assumed that the immunity of the senior judiciary is linked to their
sitting in a superior court of unlimited and general jurisdiction whose orders
are valid even if wrongly made, subject only to correction on appeal. If you
sit in a court of limited jurisdiction, why should you have special immunity
when you act outside those powers? Particularly why should you have it without
Parliament expressly conferring it. Somewhat antithetical to the Diceyian
constitution...
Matthew
Hoyle
Barrister
One
Essex Court
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From: Stephen Pitel <spitel@uwo.ca>
Sent: Wednesday, February 12, 2025 12:25:42 PM
To: Neil.Foster <Neil.Foster@newcastle.edu.au>;
obligations <obligations@uwo.ca>
Subject: RE: Judicial immunity from tort actions
Another victory for Lord Denning (Sirros
v Moore, [1975] QB 118)
In Canada at common law the immunity
distinction between superior courts and inferior courts has been maintained,
though there is at least one decision to the contrary: Re Clendenning and
Board of Police Commissioners for City of Belleville, 1976 CanLII 696 (ON
SC).
Provinces have stepped in, passing
legislation that confers the same immunity as judges of the superior court on
the judges of the inferior court. See for example Courts of Justice
Act, RSO 1990, c C.43, s 82:
Liability of judges and other officers
82 The following persons have the same
immunity from liability as judges of the Superior Court of Justice:
1. Judges of all courts in Ontario,
including judges presiding in the Small Claims Court and deputy judges of that
court.
2. Masters.
3. Associate judges.
I m curious whether other jurisdictions
have resolved this as a matter of common law or by legislation.
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
From:
Neil Foster <neil.foster@newcastle.edu.au>
Sent: February 12, 2025 12:21 AM
To: obligations <obligations@uwo.ca>
Subject: ODG: Judicial immunity from tort actions
Dear Colleagues;
The High Court of Australia, in its decision in Queensland
v Mr Stradford (a pseudonym) [2025] HCA 3 (12 Feb 2025) (conjoined with
actions against the Commonwealth and Judge Vasta personally), has affirmed that
judges of all courts in Australia (whether those courts are superior or
inferior courts) have an immunity from civil suits in relation to their
exercise, or purported exercise, of judicial power. In addition, court officers
and police who are acting in accordance with an apparently valid judicial order
are not liable in the tort of false imprisonment.
In Stradford (a pseudonym) v Judge Vasta [2023] FCA
1020 the federal court was dealing with a claim by a litigant in family
law proceedings, who had appeared before Judge Vasta in the Federal Circuit
Court of Australia, and who was summarily imprisoned for about 8 days by the
judge in circumstances later found on appeal (within the family law system) 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. Wigney J in the Federal Court
upheld the claim and ordered a significant award of damages for false
imprisonment: 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. In brief, his Honour held that the doctrine of
judicial immunity only applies to superior courts, and the FCC was
an inferior court. (The FCC was created as a lower tier federal
court with jurisdiction in minor family law matters and other federal areas.)
The High Court allowed the defendants to leap frog any intermediate
appeal and took on the case. The decision on judicial immunity and the liability of
court officers and police is unanimous, but there are four separate judgments:
a plurality judgment involving GAGELER CJ, GLEESON, JAGOT AND BEECH-JONES JJ,
and separate decisions by Gordon J, Edelman J and Steward J. I think Gordon and
Steward JJ are in dissent on one of the appeal questions (whether the effect of
a particular provision of the legislation establishing the Federal Circuit
Court made Judge Vasta s order valid until set aside, or not.) But they also
agreed on the main issues.
The plurality are fairly straightforward on these points (foonotes
omitted):
[2] Although there are
differences of significance between inferior courts and superior courts, there
is no justification for differentiating between the scope of the immunity from
civil suit afforded to judges of all courts. This is so because the purpose of
the immunity is the same for judges of all courts. That purpose is to
facilitate the independent performance of the judicial function free from the
spectre of litigation, as well as to enhance the finality of judgments quelling
legal controversies. The necessity for judicial independence, and the interests
of finality of judgments, apply to the exercise of the judicial function by
judges of both inferior courts and superior courts. Judicial immunity does not
exist for the benefit of individual judges.
[3] Recourse against a
wrongful act or omission by a judicial officer (including a negligent, unjust,
or even malicious act or omission by a judicial officer) in the performance or
purported performance of a judicial function is to be found within such system
of appeals as might be applicable, such means of collateral challenge as might
be available, and such processes of discipline and removal from office to which
the judicial officer might be amenable. It is not to be found in a civil suit
against the judicial officer.
[4] As the facts and outcome
of these appeals demonstrate, the effect of this absolute immunity may be such
that a victim of unjust treatment by a judicial officer will be left with no
means of obtaining monetary compensation through the courts. If that is so, and
the unjust treatment has caused harm to the victim, it may be that one or other
of the legislative schemes for the making of an ex gratia or "act of
grace" payment may compensate the victim
[12].. the common law of
Australia affords the same immunity from civil suit to judges of inferior
courts as it does to judges of
superior courts. Under that
common law, judges of Australian courts being the "courts" referred
to in s 71 of the Constitution including any court of a Territory and any
"court of a State" as referred to in s 77(iii) of the Constitution
(irrespective of whether those courts are invested with federal jurisdiction)
are immune from civil suit arising out of acts done in the exercise, or
purported exercise, of their judicial function or capacity. As Judge Vasta
purported to perform such a function in convicting and sentencing Mr Stradford,
he is not liable to Mr Stradford for false imprisonment.
[13] In respect of the third
issue, the common law affords some protection from civil liability to those who
have a legal duty to enforce or execute orders or warrants made or issued in
judicial proceedings of the courts just described, including an inferior court,
even if those orders or warrants are invalid for jurisdictional error. In the
case of invalid orders or warrants, this protection does not extend to
authorise acts done in enforcing or executing an order or warrant of a kind
which, on its face, is beyond the power of the relevant court to make or issue.
[14] Each of the Queensland
police officers and the Queensland correctional officers had a legal duty to
enforce or execute orders or warrants made or issued by the Federal Circuit
Court. The MSS Guards also had a duty to enforce an oral order made by Judge
Vasta requiring them to detain Mr Stradford. There was nothing apparent on the
face of the orders made and warrant issued by Judge Vasta which suggested they
were beyond his power to make. Otherwise, none of the Queensland police
officers, the Queensland correctional officers and the MSS Guards were aware of
any defect of authority on the part of Judge Vasta to imprison Mr Stradford. It
follows that they also are not liable to Mr Stradford.
In coming to this conclusion the plurality note that
they will not adopt what seems to have been a different view put forward by the
House of Lords per Lord Bridge of Harwich in In re McC (A Minor) [1985]
AC 528- see [101] explicitly.
Edelman J concurs in the result on these issues but
frames the issues differently, and in particular his Honour says that the
distinction between superior and inferior courts recognised by the
plurality should no longer be accepted in Australia. See [227}:
to the extent that
Australian law recognises any distinction between "superior courts"
and "inferior courts", it should no longer
do so.
This of course is quite a radical suggestion (supported by Steward J at
[325] though not by the other members of the court). It will be interesting to
see if it is adopted in other areas such as administrative law. I also was
struck by the following comment coming in [238] after a quote from Holdsworth:
almost every word of what Holdsworth said is wrong !
Regards
Neil
NEIL FOSTER
Associate Professor, School of Law and Justice
College of Human and Social Futures,
University of Newcastle, NSW
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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