From: Samuel Beswick <sbeswick@sjd.law.harvard.edu>

Sent: Wednesday 12 February 2025 18:21

To: Stephen Pitel

Cc: Neil.Foster; obligations

Subject: Re: Judicial immunity from tort actions

The principles in Canada were recently restated in Brinton v. Nova Scotia (Provincial Court), 2024 NSSC 292, which facts rival Stradford v Vasta on the remarkableness scale.

The plaintiff, a Provincial Court judge in Nova Scotia, claimed she was stood down from presiding over in-person trial and sentencings due to her being unvaccinated from Covid-19. Judge Brinton sued the Chief Judge for the Nova Scotia Provincial Court in tort (intentional infliction of mental suffering and misfeasance in public office), "sui generis" contract, and breach of the Charter of Rights and Freedoms, claiming damages of $5 million dollars plus punitive damages for mental and emotional distress, as well as loss of income and reputation.

The Court noted "There is no reported Canadian case, to my knowledge, of a judge suing the Chief of their court ...."

The claim was struck out on the basis of judicial immunity. It was also an abuse of process, as the factual foundation of Judge Brinton's civil claim replicated an earlier complaint she had made to the Judicial Council which had been dismissed. A judicial review of that decision was also dismissed: https://www.jccf.ca/nova-scotia-supreme-court-dismisses-judges-complaint-that-her-privacy-and-independence-were-violated/

Among the numerous references cited in the civil case, the NS Supreme Court quoted Fray v. Blackburn (1863), 3 B. & S. 576 that "It is a principle of our law that no action will lie against a Judge of one of the superior Courts for a judicial act, though it be alleged to have been done maliciously and corruptly." As Stephen says, in most provinces, including Nova Scotia, this principle has been extended to lower court judges by legislation. Interestingly though in Alberta, Court of Justice Act, RSA 2000, c C-30, s. 9.51(1) provides that provincial court judges have immunity for exceeding jurisdiction

"unless it is proved that the judge acted maliciously and without reasonable and probable cause."

(Sorry Lionel, I couldn't help myself.)

It seems counsel for Judge Brinton didn't bring to the Nova Scotia Supreme Court's attention the first instance decision in Stradford v Vasta.

Best,

Sam

On Wed, 12 Feb 2025 at 04:25, Stephen Pitel <spitel@uwo.ca> wrote:

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

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