This judge’s unfair decisions upended people’s lives. What can be done about it?

By Hagar Cohen, on Background Briefing

These Australians were denied a fair hearing by one controversial judge.

Now, for the first time, they’re speaking out about their experiences.

Hagar Cohen investigates what happens when the behaviour of a judge inside a courtroom is called into question.

Duration: 41min 3sec

Broadcast:
More Information

Statement from a spokesperson for the Federal Circuit Court of Australia:

The Federal Circuit Court has a comprehensive complaints procedure. It assesses each complaint and takes action as appropriate in response to its gravity.

The Chief Judge, when discharging his responsibilities in managing judges, has a limited number of powers available to him (under section 12 of the Federal Circuit Court of Australia Act 1999) including counselling, mentoring and in exceptional circumstances, temporarily removing a judge from sitting.

In the past two years the Court has introduced substantial measures to assist and support judges to perform their duties. These include a more rigorous induction process for new judges, a formal and ongoing mentoring program and closer management and monitoring of judgments. There are also mentoring and counselling opportunities with judges of superior courts or retired judges.

In addition to these measures, the Court has introduced an extensive health and wellbeing program and regular national judicial education sessions.

Together with the complaints procedure, judicial decisions are also subject to appeal. The appeal system is a cornerstone of our system of justice. It is a matter of public record that a number of decisions by the judge in question have been overturned on appeal.

While the Court is not at liberty to discuss individual cases, the judge has had an extremely heavy workload over the past three years and since his appointment in 2015 His Honour has delivered 1306 judgments. He also had the added pressure of holding a senior administrative role within the Court. The judge is no longer undertaking that administrative role and he is receiving mentoring from a retired judge to assist and support him to fulfil his duties.

It is noted that the matters that are the subject of adverse comments occurred prior to having these measures in place.

Transcript

ALICE BRENNAN: We’re back for 2020 — with the best investigations in your pod feed every week. Welcome to Background Briefing. I’m Alice Brennan. So…When a relationship breaks down … and people can’t agree about who owns what… sometimes they end up in court. That’s what happened to Will when he separated from his wife. But what happened next he really DID NOT expect. Because Will … ended up in jail.
Will remembers the day that his freedom was taken away.
WILL: I was escorted to a lift that went underneath the building.
ALICE: It was the 6th December 2018 at the Federal circuit court in Brisbane
WILL: I was then asked to take off my belt, my cufflinks and anything else. That’s when the reality really hits that all of a sudden my liberty is gone, my choices are gone, my freedom is gone.
ALICE: What followed… Will says…changed him forever. Will isn’t this guy’s real name, but we can’t use his real name because it’s legally sensitive. And just a warning here — there’s some intense mental health stuff coming up in a bit. The first thing he tried to do in prison was call someone for help
WILL: all I wanted to do was try to ring my old lawyer up. I was in tears and I said, this is what’s happened. And she said, Look, Will, I can help you, but I can’t help you without money. So we’re going to need 20 to 30 thousand dollars before we can do anything here. How we gonna do it? So I said, well, I don’t have that money. And, you know, this is the one phone call I get to make.
ALICE: During his first night in custody… he felt the terror…
WILL: It really started to dawn on me. It is the worst possible place on earth. and realizing that there’s no way I’m getting out, that’s when it really started to affect my mental health
ALICE: By the time Will had been behind bars for three days, he’d had enough.
WILL: It was lunchtime and that one particular watch house staff, when he opens the hatch to feed us our Red Rooster he’s supposed to put it in the hatch and then close the hatch back up. But he left the hatch door open, which gave the opportunity you know, attempt to do what I needed to do.
ALICE: Will was frightened, exhausted, and really desperate.
WILL: I didn’t see a way out. Those feelings overrode the feeling of wanting to be there for my children. I’d set I’d set the set little apparatus up. But a couple of quite profound things happened at the moment I intended to do it.
ALICE: The first thing came from his cell-mate.
WILL: The gentleman that was coming off ice and heroin, that was in all sorts of bad shape, had a moment of clarity and told me that I can’t do it.
ALICE: The second thing that Will says saved him.. hearing a song on the radio
WILL: in the… in the watch house they have…they have a.. a radio playing just low, just as background. And… uhm.. at the time my daughter’s favourite song was a song called Shotgun the… uh… the George Ezra song.
WILL: if it wasn’t for this shotgun on the song coming on the radio, that’s… that’s what stopped me from doing it. And that’s the only reason.
ALICE: Will says being in jail is something that you can never forget.
But what he’s really angry about is how he ended up there. Because Will isn’t a criminal.
Our reporter Hagar Cohen has been investigating how a controversial judge sentenced him to prison…and how his case, and others like it, have sparked a debate about judicial accountability.
HAGAR COHEN: Going to court is never easy, or pleasant. But Will thought his property settlement would end with a straightforward division of assets between him and his ex wife.
WILL: I wasn’t trying to protect a large castle. I was just looking to get something fair and reasonable.
HAGAR: It was a stressful time. Will prepared for court.. He was asked to bring documents that would show what he owned, how much he earned, and what companies he had investments in, so that the court could decide how to divide the assets equally between Will and his ex wife. But he said he couldn’t get access to everything the judge wanted.
WILL: Some of those documents were for companies that were not even related to me that I had no legal right over.
HAGAR: The judge is surely going to understand this.. Will thought
WILL: 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.
HAGAR: But as Will’s hearing went on, it became pretty clear that the judge wasn’t happy. He told Will that not bringing all the documents he was meant to — put him in contempt of court. He even said he hoped Will had brought his toothbrush…because he wouldn’t be going home.
And that’s exactly what happened – the judge sent Will to 12 months in jail.
WILL: To end up in jail in a property settlement? I was just numb
HAGAR: Will spent 7 days in custody. His conviction was later overturned. The full bench concluded by saying “it is difficult to envisage a more profound or disturbing example of pre judgement and denial of procedural fairness. Forcing Will to continue to serve a prison sentence, the appeal judges said, would be ‘an affront to justice’. The man who sent Will to prison in the first place is a controversial judge. Judge Salvatore Vasta. Before he became a judge, Salvatore Vasta carved a reputation for himself back in the 90s as a prosecutor who put some of Queensland’s worst criminals behind bars.
REPORTER: Prosecutor sal Vasta described Perini as devoid of a conscience……
HAGAR: Working as a state prosecutor, Vasta became known for his uncompromising approach to cases. In the courtroom he was sharp. Unrelenting. Determined.
REPORTER: Mr Vasta said Perini had shown no remorse, and that he believed killing Ms Wuth was as bad as stealing a loaf of bread.
HAGAR: Fast forward to 2014, Salvatore Vasta was appointed judge of the federal circuit court
And now, it’s his performance as a judge that’s been attracting controversy. The Law Council has officially complained about the judge’s inappropriate behaviour in a number of cases. Other judges have criticised him in judgements for intimidating people who come before him in court.
But here’s the thing. It doesn’t really matter how much criticism a judge cops, or how many of their judgements are overturned. Judges can’t be sanctioned. And even in a worst case scenario, removing a judge from office for misconduct is almost impossible. It generally takes an act of Parliament. That’s only happened once in Australia since federation. It was back in the 1980s, a supreme court judge was removed in Queensland. That judge was Angelo Vasta. Judge Salvatore Vasta’s dad. His removal was unrelated to his judicial work. But what happens when the behaviour of a judge INSIDE the courtroom is called in question?
WILL: when you walk into that courtroom, your life is not your own anymore. You are in a vulnerable situation, that if somebody decides that your liberty and your freedom can be taken away, they can. They have the power to do that to you.
HAGAR: is it just here?
DRIVER: Yes
HAGAR: Thank you so much.
During my research I’ve found out that between May 2018 and December 2019, 9 of judge Vasta’s decisions were heavily criticised by appeal court judges before being overturned on appeal. It’s extremely rare to see appeal judges level this kind of harsh and repeated criticism at one of their colleagues. 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. People like Sam, who’s a single working mother. Sam isn’t her real name, we’ve given her a pseudonym for legal reasons.
SAM: I was working at the school, and it was lunch time, and the bell had gone and I was just due to finish, and I had someone from admin come over to me and said there’s somebody waiting for you and I was served with contravention papers in person at the school, in front of all my colleagues.
HAGAR: The contravention papers she’s talking about are court documents Sam’s ex husband served on her. They included an official order to attend court. Sam’s ex claimed that she breached their agreement to talk to each other before making decisions about the kids’ schooling. What happened was that one of the children was about to go to high school
SAM: I was informed that he would have a fairly high prospect of being able to get a music scholarship at a school.
HAGAR: Sam put their son’s name down at this school. But to get accepted he also had to sit a test.
SAM: So he practiced, and I took him off to the scholarship and he was interviewed and all very nervous.
HAGAR: In the meantime, Sam put her son on waiting lists at a few other schools so he’d have options.
SAM: And then I approached my ex husband and said, ok. These are the 3 options: what are you thinking? Where do you want to go?
HAGAR: A few weeks later… the scholarship results arrived.
SAM: Turns out he did get the scholarship, so he was absolutely over the moon, and rang his dad and said I’ve got this scholarship, and for whatever reason, that made his dad very very angry.
HAGAR: And that’s what prompted Sam’s ex to accuse her of leaving him out of decisions about their children’s schooling. He said she enrolled their son at a school without consulting him.
SAM: I was just trying to provide opportunities for my son to go to high school. I certainly wasn’t trying to do anything without his father, I just wanted the best for the kid.
HAGAR: Sam says she couldn’t pay for a lawyer to represent her. She’d have to do this one alone. She got all the documents in order — affidavits, phone records, legal papers — and she plotted out the argument she would present to the judge. She was confident….
SAM: I hadn’t hurt anybody. I’d always said to my children, if you don’t do anything wrong, you have nothing to fear. And that’s what I believed when I went in there
HAGAR: It’s a sunny day in early 2019. Sam, dressed in black pants, a nice patterned shirt and heels… arrives at the courthouse in Brisbane. She checks the listing page, taped to the wall on the ground floor. It says she’s going to be heard at 10am by Judge Vasta.
SAM: it didn’t matter to me who the judge was. Because you are all sitting there, and you assume that a judge is always going to be fair, and they are going to look at both sides of the story and make a just decision.
HAGAR: Sam takes the elevator to the 2nd floor…
SAM: I’m hugely nervous. Because this is the first time where I’d been into a court room unrepresented.
HAGAR: Then… her ex husband shows up with a barrister
SAM: in his robes, and I was kind of intimidated right then and there.
HAGAR: The hearing begins. Judge Vasta explains the process to Sam, and how he will make a decision at the end:
Here’s a reenactment of part of that hearing based on court transcripts…
ACTOR (HIS HONOUR): Then at the end of the day I decide whether or not there has actually been a contravention of the order; okay?
ACTOR (SAM): Thank you, your Honour.
ACTOR (HIS HONOUR): And then, if it is that you have contravened it, you’re going to be punished.
ACTOR (SAM): Thank you, your Honour.
ACTOR (HIS HONOUR): Okay? And [counsel for the father] might let you know what happens to people who I find contravene orders.
ACTOR (SAM): Yes, your Honour.
ACTOR (HIS HONOUR): It’s not good.
ACTOR (HAGAR): As Judge Vasta is telling her this, what Sam doesn’t know is that he’s sent two people to jail before her, for contravening court orders, just like hers.
ACTOR (SAM): Why would I think that he would be going to send me to prison for trying to enroll my child in a school??
HAGAR: The Barrister Sam’s ex brought, cross examines her first. Then it’s her turn to cross examine her ex husband.
ACTOR (SAM): and I’m standing there trying to play barrister! And I’ve got no idea how to play barrister! I did have a list of questions and I had my strategy written down of how i was going to approach the day, so I started questioning, but for whatever reason, judge Vasta decided that that wasn’t the right way to start questioning.
ACTOR (HIS HONOUR): So that’s fine. You want to ask those questions – it’s great. But we’re – you know, we’re not achieving anything by them.
ACTOR (SAM): I had it in my mind that how I was going about things, but then was told that no that wasn’t relevant, and that wasn’t right, and you need to try to come up with something different, and I kind of just stood there looking really foolish going… well, I don’t have anything else to say. And I just thought… don’t upset the man any more. And he had talked and talked and talked that much at me.. That I was confused as to what I was to say.
HAGAR: After a 2 hour hearing, Judge Vasta concludes that Sam did contravene court orders. But he gives her one last chance to defend herself.
ACTOR (HIS HONOUR): Yes. All right. What do you want to say for yourself? You have heard what I have had to say.
ACTOR (SAM): Yes, your Honour. I tried to act in the best interests of my…
ACTOR (HIS HONOUR): You have not at all done that. Don’t give me that rubbish. You have done whatever it is that you can do to frustrate the relationship between the father and the child. How on earth can you say that you were acting in the best interests of your child when you didn’t even tell the father that you were doing this and applying for scholarships or applying to put him at that school? Don’t give me that rubbish.
ACTOR (SAM): Yes, your Honour.
ACTOR (HIS HONOUR): That’s what it is. It is pure rubbish. This was an act of spite by you to the father. For whatever perceived grievance you have with him, you have used the children as a pawn.
ACTOR (SAM): Yes, your Honour.
ACTOR (HIS HONOUR): That’s what you’ve done.`
ACTOR (SAM): Yes, your Honour.
ACTOR (HIS HONOUR): There is only one place that you’re going
HAGAR: Sam still doesn’t understand exactly what that means… . But the barrister acting for her ex husband does . And he tries to stop it from happening.
ACTOR (COUNSEL FOR THE FATHER): He seeks a bond; he seeks a bond in the term of two years. Now, your Honour, I’m content to make submissions in respect of a surety. I think a surety should be…
ACTOR (HIS HONOUR): I am not thinking of bonds.
ACTOR (COUNSEL FOR THE FATHER): No?
ACTOR (HIS HONOUR): you have been in my court a number of times. What do I say about the only place people go if they transgress my orders?
ACTOR (COUNSEL FOR THE FATHER): Yes, your Honour – – –
ACTOR (HIS HONOUR): …because he is a decent person, and yet the mother just treats him as if he is dirt. She doesn’t care about what he wants to do; it will all be done at her convenience.
HAGAR: Judge Vasta sentences Sam to a week in jail, wholly suspended.
SAM: It just felt like the bottom fell out of my world. I … I could hear everything going on around me, but I didn’t know what was happening anymore. And I just walked out of the courtroom and I spent the next 3 days literally in a daze. It was scary, terrifying.
HAGAR: If Sam makes ANY mistakes over the next two years, she could find herself behind bars.
SAM: so the existing parenting plan that we had in place was still in place, and if I contravened anything in that order, then I could be sent to prison….36.05. And that means that if I don’t get a phone call during the time that it’s stipulated in the parenting plan, if I miss it by 5-10 minutes.. That meant that I could go to prison.
SAM: my children were supposed to talk to my ex husband, and I missed the phone call time by 16 minutes. Which I had them call him immediately and he didn’t answer that night for whatever reason. But after that I got text messages from him telling me that I had now contravened orders and how much would I like to go to jail for that.
HAGAR: Her ex didn’t end up telling the court about that mistake. But Sam was still terrified.
SAM: And sometimes I’d look at the thing and think, what have I done? What have I contravened? So I was so super careful to not contravene.
HAGAR: In the end the full court of the family court overturned Sam’s conviction and sentence.
In an extraordinarily critical judgement, the 3 appeal judges agreed Sam never contravened her court orders… and that she was, in fact, acting in the best interests of her children. The judges found that Judge Vasta had pre judged Sam’s case. They also criticised the way Judge Vasta had repeatedly interrupted Sam in court, his at-times intimidating manner, and the disparaging comments about Sam, that had no basis in evidence. The judges said that Judge Vasta made substantial errors in law, that the reasons for his judgement were plainly inadequate, and the sentencing was entirely arbitrary. Much of the hearing, they said, was a fundamental failure to provide Sam procedural fairness.
SAM: 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.
HAGAR: I got in touch with another man Judge Vasta has wrongfully imprisoned.
LEIGH JORGENSEN: it brings up toxic thoughts. I mean I’m already full of enough toxic thoughts and feelings as it is so… it’s one of those things.
HAGAR: Leigh Jorgensen’s interactions with me have been uneasy. He’s been wary about talking to me for this story. But I persisted with Leigh. His case raises fundamental questions about our court system.
When Leigh’s conviction was overturned, the full bench said Leigh’s behaviour before judge Vasta was not impressive: they said Leigh appeared evasive at times, or unwilling to answer questions clearly. So what happens when a judge gets a difficult witness in court?
I travelled to meet Leigh at his place in Cairns. To clear the air… I decided to start the interview on the rooftop of his building to talk about Duffy the pigeon
LEIGH: … Hello! You’re going to be famous? Huh?
HAGAR: It is the famous clean Duffy after a shower with me this morning
LEIGH: they literally sit there, and get the spray off my body, and treat it as their own shower.. You love it don’t ya? Huh? He’s king of the world up here, aren’t ya? There he goes! Haha!!
Later on we stroll through town and Leigh tells me that his connection with Duffy feels natural. It’s people he’s not very good with.
LEIGH: To be honest I struggle…I struggle a bit socially. I get anxiety and stuff. I think I’m an introvert. They say introverts find socialising exhausting.
HAGAR: Leigh was a tour operator.. He used to organise tour packages and bus trips to the Daintree Rainforest. But his business shut down
LEIGH: This was my shop right here. It’s been .. a tattoo company there now…. I’ve never stepped foot inside that shop since I left.
HAGAR: His troubles started 4 years ago. The court found his company had underpaid 5 of his staff. Leigh didn’t comply with an order for his company to pay them what the court said they were owed. So the court issued an order to freeze bank accounts belonging to Leigh’s company. A few months later fair work claimed that Leigh had withdrawn money from one of the accounts, breaching the court order. Leigh denied the transactions were a breach. And that’s how he found himself at the Federal Circuit Court – before judge Vasta
LEIGH: My legal guys that I met when I went to Brisbane, they were disappointed with the way I was dressed,… uhm….Khaki shorts, flip flops (laughs) and an untucked collared shirt. Smart-casual I guess you’d say…uhm.. I thought I looked good.
HAGAR: Things did not go well.
LEIGH: You’re scared right. You’re very vulnerable.
HAGAR: Judge Vasta kept throwing lots of questions at him. In fact his questioning of Leigh, took about 40% of the hearing’s time.
LEIGH: He was mocking me, he was cutting me off all the time. He was being condescending. It felt like he’s the prosecutor. He was the judge, jury and executioner. 30.48….. I just couldn’t believe that he was a judge
HAGAR: What did you expect the judge to be?
LEIGH: To be impartial, at least! I remember thinking the prosecution like the fair work ombudsman’s counsel, like they don’t even have a job to do. He’s doing everything for them.
HAGAR: This is a re-enactment of part of what happened in the courtroom, based on court transcripts.
ACTOR (MS WILSON): Mr Jorgensen, on 4 August 2015 $2300 came from the frozen account. This was not for remuneration and employee entitlements of the first respondent employees as required by law?
ACTOR (LEIGH): Not specifically. What I don’t understand what…
ACTOR (HIS HONOUR): Yes, you do. Don’t you dare play dumb with me?
ACTOR (LEIGH): Well, if…
ACTOR (HIS HONOUR): He doesn’t want to answer and I’m not going to…
ACTOR (LEIGH): Well…
ACTOR (HIS HONOUR): …force him from here on in. If he wants to keep playing this stupid charade, then that’s fine. Just move onto your next question.
ACTOR (MS WILSON): I am just putting the case, your Honour…
ACTOR (HIS HONOUR): I know, and you’re…
ACTOR (MS WILSON): ….but it seems pointless.
ACTOR (HIS HONOUR): ….being extremely fair and he doesn’t want to, as it were, in any way engage in a proper forensic examination as is required by law. And if he doesn’t, that’s fine. That’s fine. I’m watching.
HAGAR: At the time, in that stifling courtroom, Leigh says he was shaking.
LEIGH: Um. ….. Breathing. Um… I guess I was petrified ….
HAGAR: Leigh was convicted of contempt of court. Judge Vasta decided that he did breach the freezing order. He sentenced Leigh to 10 days in prison.
LEIGH: There was 4 police officers waiting outside the courtroom. And they put me in handcuffs and put me in a paddywagon and took me to prison.
HAGAR: Leigh spent 2 days in jail, and then managed to get out until his appeal could be heard. But he had to surrender his passport and check in with the Cairns police twice a week, until his appeal was concluded. 14 months later, the Federal Court overturned the conviction. The full bench remarked that judge Vasta was frequently critical, dismissive, disparaging or sarcastic towards Leigh during the trial. These kind of excessive interventions, they wrote, were ‘an egregious departure from the role of judge’ and that Vasta’s capacity for objectivity was ‘fundamentally compromised’. The federal court concluded… that what happened to Leigh… was a substantial miscarriage of justice.
Leigh says the judgement is a relief but he’s still out of pocket. And he’s the first one to admit that his mental health isn’t what it used to be
LEIGH: Oh yeah.. You’ve seen… you’ve seen what I’m like. Yeah it definitely leaves a lasting impression on your emotional state. It’s extremely destructive.
HAGAR: The Chief judge declined my invitation for an interview. But in a statement, a spokeswoman from the Federal Circuit Court said that judge Vasta has had an extremely heavy workload over the past three years and since his appointment in 2015. His Honour has delivered 1306 judgments. Judge Vasta is currently receiving mentoring from a retired judge to assist and support him to fulfil his duties. The full statement is on our website. Judge Vasta also declined an interview. But in a letter to his fellow judges written in march 2019 and leaked to the legal website Justinian, Judge Vasta described the heavy workload of the court.
ACTOR (VASTA): The court itself is under considerable strain. We currently have four judges who are either personally sick or are dealing with spouses who are quite sick. On top of that, we have had two of our hardest workers leave our ranks. Given our current predicament, it would be understandable if we gave in to despair. But it is not a time to panic.”
HAGAR: He reassured his colleagues that he was fighting to make the system better.
ACTOR (VASTA): In the end, we are all driven by a sense of duty and service to the public. Whatever happens to us, I know we will always put the needs of the litigants first and foremost in our priorities. In the weeks leading up to this, the appeal court had overturned and harshly criticised four of his judgements, including in Will’s case.
It has been a difficult couple of weeks personally. There is a tremendous strain on a person when there is a bombardment of criticism and I am not immune to that. Some of that criticism is well and truly justified but some of it is not. A great deal of the criticism is quite gratuitous.”
HAGAR: So do I refer to you as Justice Murphy or what….?
PETER MURPHY: The theoretical title is The Honourable Peter Murphy SC but I… I like Peter.
HAGAR: Peter Murphy sat on the bench, in two of the 9 appeal judgements that criticised Judge Vasta’s conduct.
Justices of the court very rarely provide commentary in the media and they almost never criticise their colleagues. Former Justice Murphy is moved to speak out because he believes it’s time judges were held to a higher standard. He insists on couching his commentary in general terms, without singling out any particular members of the bench.
PETER: Well, I don’t want to talk about specific judges. So if the question is a broader one, which is what might the community expect when judges fall below a standard? I think the public has an absolute right to expect that judges should be accountable to their judicial oath. And their judicial oath is to do right by all people, impartially, fairly and according to law.
HAGAR: Former Justice Murphy says judges hold a privileged position within society. They are trusted, looked up to… And for a good reason.
PETER: The job of judging is a skilled job, because it’s a job that’s done not by reference to what the public might want or what the tabloid press suggests the public might want or should happen, but by reference to the law. So it’s a principled, thoughtful, considered analytical process.
HAGAR: But what happens when – for example – judges come across someone in court they find difficult or just don’t like… which former Justice Murphy says… happens.
PETER: Look, judges are not robots. They’re humans.
HAGAR: So what happens when judges feel bias?
PETER: Judicial education includes a reference to a very important matter, and that is the notion of unconscious bias. So it is part of the task to isolate the fact that you don’t like a particular litigant as best as you are able from the decision at hand and the principles which have to be applied and most of the judges I know and respect are very conscious of it. Flail themselves when they feel that they’ve fallen below a particular standard by losing their temper or saying things that were infelicitous or whatever it might be?
HAGAR: But that does happen.
PETER: Of course, because it’s a human process. Should it happen regularly? Absolutely not.
HAGAR: And what happens if it does happen regularly?
PETER: Well, I think if it happens regularly, judges really need to give very careful consideration to whether being a judge is a job that they should continue to carry out. If you can’t act according to your judicial oath, you have no business being a judge.
HAGAR: It’s almost impossible to remove a judge – and that’s for a good reason. The independence of the judiciary is a really important pillar of our democracy, and judges shouldn’t have to worry about being removed, when making politically sensitive decisions, for example.
Under the current rules, that’s section 72 of the constitution, only the Commonwealth parliament can tell a federal judge that their time is up – and even then, only if it can be proved that there was misbehaviour or incapacity.
There is a push now… to change this by making judges more accountable
HAGAR: Hello Arthur, how are you?
ARTHUR MOSES: Good day how ya goin’
HAGAR: Just before the Xmas break… I met with one of Australia’s best known lawyers.
If you don’t mind, I’m just going to get you to introduce yourself.
ARTHUR: Yes no problems Arthur Moses SC, president of the Law Council of Australia.
HAGAR: Well… he was when we did the interview. Arthur Moses is now the former President. But when he WAS president he was a strong advocate for a federal judicial commission – an independent body that could investigate complaints against judges and impose sanctions against them when necessary
ARTHUR: Regrettably, there are some judicial officers from time to time, and we’ve seen that around the country in various instances who are not worthy of holding that office. And when that occurs, then there should be the ability to investigate these matters carefully and independently.
Arthur Moses says that he’s written to the chief judge with the law council’s concerns about judge Vasta’s behaviour towards unrepresented litigants. The Chief judge responded to him saying that judge Vasta is now getting some mentoring and also that Vasta is – a hard working judge.. And, he’s overworked.
Arthur Moses believes this kind of response is problematic.
ARTHUR: Let me be clear. The fact that a judge asserts that she or he is overworked is not an excuse for bullying behaviour in a courtroom and is not an excuse for aggressive behaviour towards lawyers or unrepresented litigants. It may be an explanation, but then it 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? And then one has got to look at the medical evidence to ascertain is this person incapable of holding a job because everybody’s overworked within the legal system
While he doesn’t go so far as to say this is the case with Judge Vasta, He does think something more needs to be done about the type of conduct that Judge Vasta has been criticised for
ARTHUR: The conduct of Judge Vasta here and I’ll be plain about it, were examples of bullying behaviour in a courtroom and actions which could be said to suggest on one view, making comments that were intimidating people. Now that is not appropriate conduct,
ARTHUR: I certainly think the conduct that has been engaged in by the judge is conduct that would constitute misconduct by the judicial officer. The question is whether it’s proved misbehaviour or incapacity within the meaning of Section 72 of the Constitution. That’s really the question, because there’s no doubt that bullying somebody in a courtroom, acting in an intimidatory manner. There’s no doubt that’s misconduct.
HAGAR: For now… Arthur Moses is waiting to see if the mentoring is helpful in addressing the issues around Judge Vasta’s conduct.
ARTHUR: So it’s a watching brief that we have in relation to these issues.
In the meantime, former Justice Peter Murphy thinks that anyone who’s been wrongfully imprisoned… should be able to seek compensation
PETER: if what is said is that being imprisoned wrongly has caused pain, has caused some suffering, then insofar as it’s confined to what’s been established as a wrongful imprisonment within the context of a civil case, then it seems to me there’s a strong argument to suggest that those people should have access to financial compensation from the state.
HAGAR: In the case of Will, the single father who Judge Vasta sent to jail over a property settlement, the appeal judges concluded that what happened to him was an affront to justice.
Will now maintains … being wrongfully imprisoned was devastating. He says he very nearly ended his life in jail..
Will reckons he deserves compensation. He’s preparing to try to sue Judge Vasta. And this time, he’s got legal help.
LISA FLYNN: My name is Lisa Flynn, f-l-y-double n. I’m the national practice leader at Shine Lawyers.
HAGAR: Lisa Flynn – represents Will.
LISA: We’re committed to leaving no stone unturned.
HAGAR: Attempting to sue a judge is a big deal… – mostly because well… judges can’t usually be sued
LISA: the doctrine of judicial immunity, which means that a judicial officer acting within his or her jurisdiction is immune from civil suit. So what we will need to prove is that the circumstances here provide an exception to this doctrine showing that Judge Vasta was acting outside of his jurisdiction when he made the order to imprison our client.
HAGAR: And if that doesn’t work… they’ll go for the Commonwealth.
LISA: The federal court has publicly said that around the time that the decision was made by Judge Vasta, that he had a huge workload and that he had senior administrative duties at the same time, which may have been given as a reason by the federal court as to his behaviour. And we’re looking at arguments that the Commonwealth, by placing or placing our client in prison and leaving him there for seven days, constitutes a breach of their duty of care.
HAGAR: Within a period of 20 months, 9 people who stood before judge Vasta were denied procedural fairness.
Three of them were sentenced to prison.
Lisa Flynn says, Will’s legal action is necessary.
LISA: This isn’t a one off event involving Judge Vasta. And our client is concerned that it will continue to happen and that there’s absolutely no accountability to stop it from happening to other people.
WILL: what can we as a society do to protect society from this continuing to happen within people’s lives? The end of the day, what’s left for a person when they have to go through that experience and then have to deal with the emotional and mental fallout of that experience?
HAGAR: Have you lost trust in the justice system?
WILL: Absolutely. If that person decides it’s time for you to go to jail. You’re going to jail. Your life is in someone’s hands. You’re leaving your life at the door when you walk in there.

CREDITS
Background Briefing’s Sound Producers are Leila Shunnar and Ingrid Wagner.
Sound engineering by Isabella Tropiano
Fact-checking by Benjamin Sveen
Supervising Producer is Tim Roxburgh.
Our Executive Producer is Alice Brennan.
And I’m Hagar Cohen