For centuries there have been restrictions on suing a judge who has heard your case if you think they got it badly wrong. You could appeal against the decision or, in theory, petition the legislature to remove the judge. But you couldn’t normally sue the judge for damages. There were some exceptions to this rule but these have been removed in Australia in a recent case that went all the way to the High Court.
This episode discusses The State of Queensland v Stradford (2025) and the arguments either way for giving judges an immunity from being sued and whether there could be a compromise position, perhaps involving insurance, so that the victims of gross judicial negligence and not left effectively without a remedy.
TRANSCRIPT
STEPHEN PARKER
Should you be allowed to sue a judge for damages if you think they got it badly wrong?
We mentioned this issue briefly in our episode on Judges, where we said that a judge is immune from being sued for any decision they make as a judge, but there were some loopholes, and occasionally the issue is still litigated.
STEPHEN BOTTOMLEY
Well it was litigated all the way to the High Court of Australia recently. In a significant decision handed down in February 2025, Australia’s most senior judges have said that the immunity of a judge from being sued for acts in the performance, or purported performance, of the judge’s functions is absolute. It applies everywhere; all the time.
STEPHEN PARKER
A couple, who for the purposes of the case were given the names Mr and Mrs Stradford, were going through a divorce and property dispute. Judge Salvatore Vasta in what was then the Australian Federal Circuit Court ordered that Mr Stradford should make “full and frank disclosure” of various financial documents. The matter came back to court several times because Mrs Stradford claimed that the disclosure was not complete.
Finally, the case returned to Judge Vasta who adjourned it for a short period to allow the parties to discuss settlement. Presumably to give Mr Stradford something to think about, he said that he hoped Mr Stradford had brought his toothbrush with him. Mrs Stradford repeatedly said that she didn’t want him to go to prison.
STEPHEN BOTTOMLEY
No settlement was reached, and later that day Judge Vasta sentenced Mr Stradford to 12 months’ imprisonment for contempt of court in disobeying the disclosure order. In doing this, Judge Vasta mistakenly assumed that a different judge in an earlier hearing had already decided that Mr Stradford was in fact in contempt of court.
Mr Stradford appealed, and the Full Court of the Family Court allowed the appeal, concluding that “the processes employed [by Judge Vasta] were so devoid of procedural fairness … and the reasons for judgment so lacking in engagement with the issues of fact and law to be applied” that it would be an “affront to justice” to permit the contempt declaration and the imprisonment order to stand.
STEPHEN PARKER
Armed with this finding, Mr Stradford sued Judge Vasta for damages for false imprisonment. This is a tort, or civil wrong, like negligence, defamation and trespass.
He also sued the police officers and the correctional officers involved in taking him away and incarcerating him, and the employers of the judge and officers, as being vicariously liable for the torts of their employees.
STEPHEN BOTTOMLEY
Judge Vasta appealed on the basis that he was immune from being sued.
His argument takes us briefly into an arcane area. The judge who awarded damages to Mr Stradford regarded the Federal Circuit Court, where Judge Vasta had ordered that Mr Stradford be imprisoned, as an “inferior court”.
The distinction between an inferior court and a superior court emerged in English law in the 1600s, as more courts were set up to deal with local or specific kinds of cases. The jurisdiction, or scope, of an inferior court was limited in some way, whereas a superior court could hear all matters.
STEPHEN PARKER
One consequence, in English law at least, was that if a judge of an inferior court made an error and exceeded the court’s jurisdiction, whatever that was, the judge was not immune from suit because the decision was invalid from the start. The judge was not actually performing a judicial duty.
In contrast, a superior court judge’s immunity from civil claims was always absolute, irrespective of any mistakes they made. They were answerable only to “God and the King”.
STEPHEN BOTTOMLEY
For the first time in Australian law, The High Court had to decide whether a judge’s immunity from suit was absolute in all situations, irrespective of which court they were in. It was also an opportunity to go into the arguments for and against judicial immunity, which all come down to public policy.
Judicial immunity, the High Court found, was absolute, and the distinction between an inferior and a superior court is irrelevant, if indeed it should continue to exist at all.
It did find that Judge Vasta’s decision to imprison Mr Stradford was invalid, but it was nevertheless a purported exercise of the judge’s power, and that was enough to attract immunity.
STEPHEN PARKER
Two key reasons of public policy underpinned the reasoning.
Immunity from being sued helps protect judicial independence. That independence includes independence of thought. If at the back of their mind a judge thought they might be sued for damages should they make a wrong decision, they might be swayed by that rather than objectively and impartially apply the law to the facts. Although not mentioned by the High Court, perhaps it was acknowledging that some parties are well-resourced and always ready to go to law. If faced with a litigious and wealthy party, lack of immunity could lead to a bias in that party’s favour.
STEPHEN BOTTOMLEY
The second key reason was to achieve finality and “quell disputes”. This is a known value in legal systems. For example, there are usually “limitation periods” in civil law matters, and sometimes in criminal law ones. If a case is not brought within a stated period of the cause of the case, the defendant can plead that the case is “time-barred”.
Judicial immunity promotes finality by bringing an end to things. An unsuccessful party can appeal against an initial decision but once all appeal avenues have been exhausted, that is that.
STEPHEN PARKER
The High Court noted that there are constitutional powers for parliaments to remove judges for misbehaviour and incapacity. And if the judge has committed a crime, for example taken a bribe from one party, then the criminal law can be applied. But in the more likely case where the unsuccessful party argues there has been a mistake, or even that the judge was motivated by bias or malice, the only recourse is to appeal. They can’t sue the judge.
So firm was the High Court in its reasons that contrary arguments barely see the light of day.
STEPHEN BOTTOMLEY
An obvious counter-argument is that the removal of judges by parliaments for misbehaviour is extremely rare. It is not a practical course of action by a disappointed litigant to petition parliament, and it doesn’t compensate them anyway.
STEPHEN PARKER
And appealing against a decision is very expensive, not open to most people, particularly with the near disappearance of legal aid schemes in civil matters.
In other professions, public indemnity insurance exists. Judges’ insurance, if it were introduced, could mean that normally the judge would not pay the damages personally, if they could be sued. And if the judge couldn’t find insurance, perhaps something about them needs looking into.
STEPHEN BOTTOMLEY
In principle, compromise solutions could be found. A hurdle might be put in the way of someone who wants to sue the judge in their case. A plaintiff might have to obtain permission, or “leave” to bring the case, and they might have to show malice on the part of the judge or an error so extreme that the judge had been reckless, not merely negligent.
STEPHEN PARKER
But courts are different from, say, private arbitration. Litigants do not make a contract with courts and are not consumers of a court’s services. They are engaging in a public process, where there are public interests at stake.
STEPHEN BOTTOMLEY
Having said all this, the public policy arguments so resoundingly affirmed by the High Court are completely bereft of any data about what the public actually thinks, or might think if the arguments and counter-arguments were presented to them.
STEPHEN PARKER
None of this has improved Mr (or Mrs) Stradford’s financial position, and no one is going to compensate them.
STEPHEN BOTTOMLEY
And what of the police and correctional officers? They were immune too, because they were entitled to rely on Judge Vasta’s decision.
STEPHEN PARKER
Courts are, in a very real sense, a law unto themselves.