Judge Escapes False Imprisonment Liability

In Vasta, the High Court unanimously denied a wrongfully imprisoned pro se litigant a tort remedy, as I had predicted that it would. Reversing Wigney J, the trial judge, it held that the litigant, imprisoned for contempt, by an order of an "inferior Court" judge tainted by "jurisdictional error", had no tort claim. Like other recent decisions, this raises issues of analytical indeterminacy, factionalism, and preferencing.

The Plurality

Gageler CJ, Gleeson, Jagot and Beech-Jones JJ held that the tainted order was invalid, because it was of an inferior Court. Judicial immunity applied, however, as if it were a superior Court. This made judges "immune from civil suit arising out of acts done in the exercise, or purported exercise, of their judicial function or capacity". Enforcement officers under a duty to execute the order were also protected, because it was not, on its face, beyond the Court's power to make. ?

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The "Minority"

Gordon J held that the tainted order was instead valid, saying that the distinction between "inferior" and "superior" courts was irrelevant. Judges were "protected by judicial immunity for all acts done in their judicial function or capacity,?in the purported exercise of judicial power in respect of a matter which the … Court had power to resolve".?This applied here.

Edelman J went further, saying: "The distinction between 'superior courts' and 'inferior courts' is an historical anachronism of English and Australian legal history which, if it ever had any sensible justification, lost that justification". The order was valid, as it purported to be an exercise of judicial authority. It gave "a defence of justification for acts that would otherwise amount to false imprisonment by the judge … , … police officers, correctional officers, and contracted guards".

Steward J agreed with Gordon J. Were it necessary, he would have agreed with Edelman J's view of inferior and superior Courts.

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Analytical Undercurrents

Like some of the Court's earlier decisions, that I explain elsewhere, Vasta reveals analytical indeterminacy, factionalism, and preferencing.

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All seven judges did not just overturn Wigney J. They did so for conflicting reasons. The plurality held that the tainted order was legally invalid. To the other judges, it justified a wrongful imprisonment. ??

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The Court's split reflects geography. As a judge's opinion only counts if it's accepted, a dynamic is developing. Spreading judicial appointments geographically could ameliorate this, and reinforce the Court's national status.

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While divergent, all analytical paths led to denying a remedy for a litigant's wrongful imprisonment. This extended to shielding from liability the States and the Commonwealth, which appoint judges.

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Takeaway

A legal system is measured by its response to the wrongful imposition of its worst penalty. Vasta reveals it to be a wrong without a remedy. As with any immunity, this places the law at risk of contradicting itself.