Can a Judge be sued for sending someone to jail?
This proposed lawsuit could test whether a judge can be sued for sending someone to jail
BACKGROUND BRIEFING BY HAGAR COHEN
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Federal Circuit Court Judge Salvatore Vasta has had a string of cases overturned over issues of procedural fairness.
In what would later be described by the full bench of the Family Court as an “affront to justice”, a man was sentenced to 12 months’ jail after walking into a property settlement hearing.
- A lawsuit is being planned against Judge Salvatore Vasta over his decision to jail a man for contempt of court in 2018
- Lawsuits against judges are extremely rare because of the principal of ‘judicial immunity’
- Three people who have been sentenced by Judge Vasta speak for the first time
Will, whose name cannot be used for legal reasons, was unable to provide all the documents he had been ordered to produce and was sentenced for contempt of court.
He had no criminal history, but the judge told Will during the hearing he hoped “he brought his toothbrush”.
Only three days into his sentence at the Brisbane watch house, Will began to think he wouldn’t survive behind bars.
“It is the worst possible place on Earth,” he told Background BriefingAbo
“Being fed through a hatch with my room-mate who is an ice and heroin addict, who was shitting and vomiting and we have no toilet paper and realising that there’s no way I’m getting out.”
Will said on that third night he reached the point where he considered ending his life. He decided against it when he heard a distant radio playing George Ezra’s Shotgun, which was his daughter’s favourite song.
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After seven days in custody, including three nights in maximum security prison, Will’s conviction was overturned.
His conviction was “a gross miscarriage of justice”, according to the full bench of the Family Court.
The court found the judge in Will’s case took on the role of prosecutor, prejudged Will’s case and decided from the outset Will would be going to jail.
That judge, Salvatore Vasta, has had a string of cases overturned on the grounds of procedural fairness.
For the first time, three people who were on the end of Judge Vasta’s decisions have spoken to Background Briefing about their experience.
Who is Judge Salvatore Vasta?
As a prosecutor Mr Vasta carved a reputation for himself by putting some of Queensland’s worst criminals behind bars.
Judge Vasta was appointed as a judge of the Federal Circuit Court by then-attorney-general George Brandis QC in 2015 and the Law Council of Australia has officially complained about his inappropriate behaviour in a number of cases in recent years.
Nine of Judge Vasta’s decisions were heavily criticised by appeal court judges before being overturned between May, 2018 and December, 2019.
PHOTO Chief Judge William Alstergren has previously announced Judge Vasta would receive mentoring.
SUPPLIED: FAMILY COURT OF AUSTRALIA
Their findings about Judge Vasta ranged from him making gross errors in law, to denying procedural fairness and intimidating people who come to court without a lawyer.
The former president of the Law Council of Australia, Arthur Moses SC, has written to Chief Judge William Alstergren about Judge Vasta’s conduct.
“The conduct of Judge Vasta here — and I’ll be plain about it — were examples of bullying behaviour in a courtroom,” he said.
“I certainly think the conduct that has been engaged in by the judge is conduct that would constitute misconduct by the judicial officer.”
In response to the Law Council’s concerns Chief Judge Alstergren announced that Judge Vasta would receive mentoring.
How do you end up in jail over a property settlement case?
Will is planning to sue Judge Vasta for compensation over the decision to jail him in 2018, according to his lawyer Lisa Flynn from Shine Lawyers.
Lawsuits against judges are extremely rare — the doctrine of judicial immunity usually prevents civil action against judges.
PHOTO Lisa Flynn said her client was planning legal action against Judge Vasta over a 2018 sentencing for contempt of court.
ABC NEWS: SCOTT MITCHELL
Ms Flynn said they will need to prove exceptional circumstances, “showing that Judge Vasta was acting outside of his jurisdiction when he made the order to imprison our client”.
When Will attended court to settle a property dispute with his ex-wife in December, 2018, Will was relatively at ease.
“I just had faith in the legal system that I could go through this process and at the end of the day the referee would decide what was fair. And I was happy with that,” he said.
Will had been ordered to bring documents to court to show what he owns, how much he earns, and what companies he had investments in, so the court could decide how to divide the assets equally.
But he said he couldn’t access some of the documents in time, as they were held by third parties.
Judge Vasta sentenced him to 12 months for contempt of court.
The full bench of the Family Court overturned the sentence on appeal.
“It is difficult to envisage a more profound or disturbing example of pre-judgement and denial of procedural fairness,” the court said.
Dispute over a scholarship application leads to sentence
Another case involved single working mother Sam, whose real name cannot be used for legal reasons, who Judge Vasta convicted of contempt of court for going against parenting orders by allowing her son to audition for a music scholarship at a school.
Sam’s ex-husband told the court he believed the scholarship application was a breach of their parenting agreement, but she insisted the application was not a breach and she was only trying to provide opportunities for the child.
During the hearing, Judge Vasta told Sam her arguments were “pure rubbish” and the application to enrol her son was “an act of spite by [Sam] to the father”.
PHOTO Sam was sentenced to seven days in jail, wholly suspended for two years.
ABC NEWS: DEMI LYNCH
Judge Vasta sentenced Sam to seven days in jail, wholly suspended for two years.
Sam told Background Briefing the experience had made her doubt the integrity of our justice system.
“I said to my children that if you don’t do anything wrong, you’ve got nothing to fear. I don’t actually believe that anymore,” she said.
The conviction was later overturned by the full Family Court, with the three appeal judges agreeing Sam never contravened court orders and that she was, in fact, acting in the best interests of her children.
The judges also said that Judge Vasta made substantial errors in law, reasons for his judgement were plainly inadequate and the sentencing was entirely arbitrary. They criticised his, at times, intimidating manner and disparaging comments made about Sam.
Federal Circuit Court appearance in a case against Fair Work Ombudsman leads to jail
Cairns tour operator Leigh Jorgensen was convicted of contempt of court and sentenced to 10 days in jail, after being found to have breached a freezing order on his companies’ bank accounts.
“You’re scared right, you’re very vulnerable,” he said.
“I guess I was petrified.”
Mr Jorgensen spent two days in jail, then managed to get out until his appeal could be heard but he had to surrender his passport and check in with Cairns police twice a week until his appeal was concluded.
PHOTO The Federal Court overturned Leigh Jorgensen’s conviction in July, 2019.
SUPPLIED (FILE PHOTO)
In July, 2019, the Federal Court overturned the conviction, saying Judge Vasta was frequently critical, dismissive, disparaging or sarcastic towards Mr Jorgensen during the hearing.
The full bench also remarked that Mr Jorgensen’s behaviour before Judge Vasta was not impressive, saying that he appeared evasive at times, or unwilling to answer questions clearly.
It said that Judge Vasta’s excessive interventions were “an egregious departure from the role of judge”.
In a statement, a spokeswoman from the Federal Circuit Court said Judge Vasta has had an “extremely heavy workload” since his appointment in 2015.
“His Honour has delivered 1,306 judgments,” it said.
Judge Vasta is currently receiving mentoring from a retired judge to assist and support him to fulfil his duties.
He declined to comment on this story when contacted by the ABC.
Who watches the judges?
While he was president of the Law Council, Mr Moses questioned whether workload is an acceptable reason for judges providing a lack of procedural fairness or engaging in inappropriate conduct.
PHOTO The former president of the Law Council of Australia, Arthur Moses, wrote to Chief Judge William Alstergren about Judge Vasta.
SUPPLIED: NEW CHAMBERS
“It may be an explanation but then raises the question, is that person somebody who is incapable of holding office because they’re unable to deal with the stress of the job? So is it an incapacity issue?” Mr Moses said.
To maintain the independence of the judiciary, judges in Australia can’t be sanctioned and removing a judge from office usually takes an act of Parliament.
The only Australian judge since federation to be removed in this way is Angelo Vasta, Salvatore Vasta’s father. His removal was unrelated to his judicial work.
Mr Moses stopped short of saying Judge Vasta’s behaviour warrants removal from office, but believes judges need to be held to a higher standard.
He has called for an overhaul of judicial oversight generally, including the introduction of a federal judicial commission.
An independent body with powers to investigate complaints against judges, according to Mr Moses, should also be able to impose sanctions when necessary.
“And when that occurs, then there should be the ability to investigate these matters carefully and independently,” Mr Moses said.
Read the full statement from the Federal Circuit Court of Australia.