Brisbane father of two claims $2m in damages after being jailed by judge during family law hearing

The Guardianhttps://www.theguardian.com/australia-news/2021/may/05/brisbane-father-of-two-claims-2m-in-damages-after-being-jailed-by-judge-during-family-law-hearing Australian Associated Press and Christopher Knaus@knauscWed 5 May 2021 19.12 AEST

In late 2018, Vasta presided over a case in the federal circuit court between “Mr Stradford”, a pseudonym, and his ex-wife, involving a routine property settlement and division of the pair’s assets.

Stradford was jailed for contempt by Vasta because of an apparent failure to provide the court with financial documents. At one point, Vasta told the man he hoped he had “brought your toothbrush”.

In another exchange, he said: “The strange thing is you really don’t think the court will ever jail you for contempt. You’re about to find that lesson is going to be a very hard one for you to learn.”

Stradford was then jailed for 12 months to be suspended after six.

He says he endured a traumatic time behind bars, including in Brisbane’s Roma Street watchhouse, where guards allegedly dressed him in women’s shorts. In one incident, he alleges he woke to find the hands of another inmate around his throat.

He says he later contemplated suicide in Brisbane Correctional Centre in Wacol, where he stayed until the imprisonment order was overturned on appeal. The higher courts described the handling of the case as a “gross miscarriage of justice”.

Stradford is now suing the judge for loss and damages. Judges are usually protected by judicial immunity but Stradford is arguing it does not apply to Vasta because of his allegedly “outrageous” conduct.

The federal court on Wednesday heard that Stradford had detailed a claim of nearly $2m for loss and damages.

He is also alleging that Queensland and the commonwealth were vicariously liable because its court and prison officers carried out the judge’s orders.

The federal court on Wednesday heard a 1965 case involving Tasmania’s supreme court was the last known case where an Australian judicial officer was held liable for damages.

“It is a very unusual case, to say the least,” barrister Jeremy Kirk SC, representing Vasta, said. “It is no small thing to sue a judicial officer and two governments for relying on a judicial order.”

While admitting he did not follow the law on holding contempt of court hearings, Vasta says in his filed defence he was not liable to be sued due to the doctrine of judicial immunity.

He said he jailed Stradford on a “mistaken belief” that another judge had already found Stradford in breach of court orders.

That was a matter for Vasta to give oral evidence about, Stradford’s barrister suggested.

“He says he made a mistake. How did that mistake come about? Was that mistake just egregious and should it have never come about?” Perry Herzfeld SC said.

The case is on course for a five-day trial in late 2021.

But the respondents on Wednesday applied to have the question of liability answered before a hearing on possible damages.

Aggravated and exemplary damages were also sought, based on the real estate agent’s time in the Brisbane watchhouse and maximum security jail, and Vasta’s alleged “contumelious disregard” for his rights.

Opposing the splitting of trials, Herzfeld said he didn’t want a drawn-out battle on liability to be followed by Vasta thinking “I’m liable for $2m now I want to get into the box”.

But Kirk said there was currently “no practical possibility of my client giving evidence at all” – even at the quantum stage.

The very “invidious” nature of the case meant any hearing on potential damages would force Vasta to decide whether to enter “the muddy field of battle” and seek to have the applicant seen by a psychiatrist of the judge’s choosing.

“The big issue for my client is the judicial immunity,” Kirk said.

Herzfeld pushed back on the invidious reference, saying the unjust position was the week of imprisonment to which his client was subjected based on “what everyone now agrees was a totally flawed order”.

The matter is due to return to court in June.