Judges of all Australian Courts – Superior and Inferior – Enjoy Judicial Immunity in Purported Exercise of Judicial Function

In Commonwealth of Australia & Others v Stradford (a pseudonym); State of Queensland v Stradford (a pseudonym) and Others; His Honour Judge Salvatore Paul Vasta v Stradford (a pseudonym) & Ors [2025] HCA 3 (12 February 2025), the High Court unanimously allowed the appeals from the judgment of the Federal Court of Australia. The issue the subject of this case note is the extension of judicial immunity to inferior courts. For convenience reference is made to the joint judgment of Gageler CJ, Gleeson, Jagot and Beech-Jones JJ. (Justices Gordon, Edelman and Steward gave separate – and detailed –  reasons agreeing with the orders proposed in the joint judgment). Their Honours wrote, by way of introduction and summary of their reasons:

1. …   Over hundreds of years, there has been a debate within the common law about the scope of the immunity from civil suit of judges of so-called “inferior courts” for acts and omissions in the performance or purported performance of the judicial function, and the extent to which that scope differs from the scope of the immunity afforded to judges of so-called “superior courts”.
2. Although there are differences of significance between inferior courts and superior courts, there is no justification for differentiating between the scope of the immunity from civil suit afforded to judges of all courts. This is so because the purpose of the immunity is the same for judges of all courts. That purpose is to facilitate the independent performance of the judicial function free from the spectre of litigation, as well as to enhance the finality of judgments quelling legal controversies. The necessity for judicial independence, and the interests of finality of judgments, apply to the exercise of the judicial function by judges of both inferior courts and superior courts. Judicial immunity does not exist for the benefit of individual judges.
3. Recourse against a wrongful act or omission by a judicial officer (including a negligent, unjust, or even malicious act or omission by a judicial officer) in the performance or purported performance of a judicial function is to be found within such system of appeals as might be applicable, such means of collateral challenge as might be available, and such processes of discipline and removal from office to which the judicial officer might be amenable. It is not to be found in a civil suit against the judicial officer.

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5. On 6 December 2018, after what was rightly described by the primary judge as a “parody” of a court hearing, the first respondent, who has been given the pseudonym “Mr Stradford”, was convicted of contempt of court and sentenced to a term of imprisonment by one of the appellants, his Honour Judge Salvatore Paul Vasta, a judge of the Federal Circuit Court of Australia.
6. The Federal Circuit Court was at that time designated by the Federal Circuit Court of Australia Act 1999 (Cth) as “a court of record”, and accordingly as an inferior court, unlike the Federal Court of Australia and what was at that time the Family Court of Australia, each of which was established as “a superior court of record”.
7. Upon being sentenced, Mr Stradford was escorted from the courtroom to a holding cell in the court complex by guards employed by MSS Security Pty Ltd (“the MSS Guards”), a contractor engaged by another appellant, the Commonwealth of Australia. Around half an hour later Mr Stradford was collected from the court complex by officers of the Queensland Police Service (“the Queensland police officers”), handcuffed, and transported in a police van to the Roma Street Watchhouse. On 10 December 2018, Mr Stradford was transferred to the Brisbane Correctional Centre where he was detained by officers of Queensland Corrective Services (“the Queensland correctional officers”) until his release on 12 December 2018.
8. Mr Stradford’s time in custody was distressing. He witnessed and was subjected to acts of violence. He experienced suicidal thoughts.
9. The primary judge upheld a claim brought by Mr Stradford for damages for false imprisonment against each of Judge Vasta, the Commonwealth and another appellant, the State of Queensland. The damages awarded in favour of Mr Stradford included an award of $50,000 in exemplary damages against Judge Vasta. His Honour found that Judge Vasta’s conduct “demonstrated a thoroughly reckless disregard of, if not outright contempt for, Mr Stradford and his rights” and that the award of exemplary damages would “serve to deter any repetition of such a thoroughly unacceptable abuse of judicial power in the future”. The Commonwealth was held to be vicariously liable for the conduct of the MSS Guards. Queensland was found to be vicariously liable for the conduct of the relevant Queensland police officers and the Queensland correctional officers.
10. Removed into this Court are appeals from that judgment by each of Judge Vasta, the Commonwealth and Queensland that were previously pending in the Full Court of the Federal Court of Australia. Three principal issues are raised by the appeals. The first issue is whether the effect of s 17 of the Federal Circuit Court of Australia Act was that the order made by Judge Vasta imprisoning Mr Stradford was valid even though it was affected by jurisdictional error. The second issue concerns the scope of the immunity from civil suit of judges of inferior courts, such as judges of the Federal Circuit Court. The third issue is whether persons such as the MSS Guards, the Queensland police officers and the Queensland correctional officers have a defence to Mr Stradford’s action because they executed an order or warrant issued by a court that appeared valid on its face, even though it was invalid because of the various errors committed by Judge Vasta in sentencing Mr Stradford to imprisonment.
11. For reasons to be explained, the resolution of each of those three principal issues is as follows. In respect of the first issue, the order made by Judge Vasta imprisoning Mr Stradford was invalid.
12. In respect of the second issue, the common law of Australia affords the same immunity from civil suit to judges of inferior courts as it does to judges of superior courts. Under that common law, judges of Australian courts – being the “courts” referred to in s 71 of the Constitution including any court of a Territory and any “court of a State” as referred to in s 77(iii) of the Constitution (irrespective of whether those courts are invested with federal jurisdiction) – are immune from civil suit arising out of acts done in the exercise, or purported exercise, of their judicial function or capacity. As Judge Vasta purported to perform such a function in convicting and sentencing Mr Stradford, he is not liable to Mr Stradford for false imprisonment.
13. In respect of the third issue, the common law affords some protection from civil liability to those who have a legal duty to enforce or execute orders or warrants made or issued in judicial proceedings of the courts just described, including an inferior court, even if those orders or warrants are invalid for jurisdictional error. In the case of invalid orders or warrants, this protection does not extend to authorise acts done in enforcing or executing an order or warrant of a kind which, on its face, is beyond the power of the relevant court to make or issue.
14. Each of the Queensland police officers and the Queensland correctional officers had a legal duty to enforce or execute orders or warrants made or issued by the Federal Circuit Court. The MSS Guards also had a duty to enforce an oral order made by Judge Vasta requiring them to detain Mr Stradford. There was nothing apparent on the face of the orders made and warrant issued by Judge Vasta which suggested they were beyond his power to make. Otherwise, none of the Queensland police officers, the Queensland correctional officers and the MSS Guards were aware of any defect of authority on the part of Judge Vasta to imprison Mr Stradford. It follows that they also are not liable to Mr Stradford.

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In relation to judicial immunity the Court held that, under the common law of Australia, all judges of courts referred to in s 71 of the Constitution including any court of a Territory and any “court of a State” as referred to in s 77(iii) of the Constitution are either immune from or have a defence to civil suit arising out of acts done in the exercise, or purported exercise, of their judicial function or capacity (footnotes omitted and emphasis in bold type added):

74. In Fingleton v The Queen Gleeson CJ described the rationale for judicial immunity from civil liability as follows:

“This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour. As O’Connor J, speaking for the Supreme Court of the United States, said in Forrester v White, that Court on a number of occasions has ’emphasi[s]ed that the nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have’. She said that ‘[i]f judges were personally liable for erroneous decisions, the resulting avalanche of suits … would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits’.

This does not mean that judges are unaccountable. Judges are required, subject to closely confined exceptions, to work in public, and to give reasons for their decisions. Their decisions routinely are subject to appellate review, which also is conducted openly. The ultimate sanction for judicial misconduct is removal from office upon an address of Parliament. However, the public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions.”

75. This justification for judicial immunity by reference to the protection of judicial independence has been long and widely recognised. The protection it provides from litigation by those disappointed with judicial decisions not only provides an institutional protection to the individual judge in performing their judicial duty free of such concerns; the immunity also enhances public confidence in the impartiality of judicial decision making by “foreclos[ing] [even] the assertion that the prospect of suit [against the judge] may have had some conscious or unconscious effect on the decision-making process or its outcome” (emphasis added).

76. Judicial immunity also exists to achieve finality in the quelling of disputes by the exercise of judicial power. The finality of judicial decisions would be undermined if those disappointed with a decision could bring proceedings against a judge as a means of attacking the judge’s decision. The interests of finality of judgments of inferior courts apply equally to judgments of superior courts, albeit that judgments of inferior courts are open to collateral challenge, whereas judgments of superior courts are not. The law’s concern to ensure the finality of judicial decisions is satisfied by judges of inferior courts having judicial immunity. The overwhelming proportion of criminal and civil disputes in this country are quelled by decisions of inferior courts. Absent a successful appeal or permissible collateral challenge to a decision, those disputes are resolved to finality. As will be explained, whatever the position was in the past, there is now no basis for contending that the immunity from civil suit of a judge of an inferior court applies only to the extent to which the decision of that judge is not capable of being collaterally challenged.

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102. What then is the proper scope of the immunity from civil suit afforded by the common law to judges of inferior courts?

103. Mr Stradford submitted that, in considering the scope of the immunity of inferior court judges and whether it should accord with the immunity afforded to superior court judges, this Court is not “writing on a blank slate” and should not “overthrow centuries of precedent”. His submissions pointed to the legislative choices that were open to Parliament in enacting the Federal Circuit Court of Australia Act to deal with judicial immunity. However, no question of second-guessing Parliament arises in this case. In enacting the Federal Circuit Court of Australia Act, Parliament left the immunity of judges of the Federal Circuit Court to the common law.

104. This is the first occasion that this Court has been required to address the scope of the common law immunity of a judge of an inferior court. This is not a case in which the Court is asked to overturn one of its earlier decisions. There is also no established common law rule concerning the immunity of inferior court judges, much less one of certain definition and application. Accordingly, this Court is seized of the opportunity to authoritatively establish a coherent and contemporary resolution of the asserted inconsistency between the extent of immunity of judges of superior and inferior courts in this country.

105. The effect of Mr Stradford’s submission is that this Court should resolve the uncertainty surrounding the scope of the immunity afforded to inferior court judges by preferring some among a multitude of cases decided in the United Kingdom over hundreds of years in a very different constitutional and, in some instances, legislative setting. That approach should be rejected.

106. As for that different constitutional setting, the independence of all courts referred to in s 71 of the Constitution is constitutionally guaranteed by the requirement that all must “satisfy minimum requirements of independence and impartiality”. That constitutional guarantee should not be undermined by acceptance of any common law doctrine of uncertain scope and application, which does not conform with its rationale. Nor should such a doctrine be permitted to undermine the role of all courts in finally quelling legal controversies. All courts “exercise jurisdiction as part of a hierarchical legal system entrusted with the administration of justice under the Commonwealth and State Constitutions”.

107. Once the scope of the judicial immunity is untethered from any connection to the circumstances in which the judgment of an inferior court can be the subject of collateral challenge, then any proper justification for a difference between the scope of the immunity of superior court judges and inferior court judges falls away. All courts of this country, other than this Court, are subject to an appellate structure, or at least judicial review. The inferior courts of this country are now constituted by persons with either formal legal qualifications or practical legal training, or both. As was recognised in In re McC, any differences in the experience, training, and qualifications of those appointed to superior courts and those appointed to inferior courts (if such a difference exists at all in this country) cannot justify differential treatment in the scope of the immunity afforded to each judge.

108. Mr Stradford sought to justify the difference between the scope of the immunity afforded to judges of superior courts and inferior courts by reference to the need to safeguard the liberty of the subject and the circumstance that the work of the superior courts is exposed to a “far greater degree of publicity than that of inferior courts”. The liberty of the subject and the accountability of all courts is enhanced by ensuring they are subject to effective schemes of appeal and review, but not by differentiating between the scope of the immunity of judges of each court. Otherwise, there is no basis for concluding that any greater level of publicity attaches to the work of particular courts in the judicial hierarchy. District, County and Magistrates Courts are open and accessible to all members of the public, including the media. Media reporting of the work of these courts, especially in the context of criminal proceedings, is commonplace.

109. Reference has already been made to the necessity for the scope of judicial immunity to be clearly defined and capable of summary application. Similarly, any limit on or exception to judicial immunity that might be sought to be derived from cases from the United Kingdom that involve a judicial officer’s state of mind should be rejected as undermining the rationale for the immunity. As noted by Gleeson CJ in Fingleton, experience suggests that an allegation of judicial misconduct by a disappointed litigant will “often … be accompanied by an accusation of malice or want of good faith in the exercise of judicial authority”. If such an accusation is made, then depending on the scope of the immunity that accusation may defeat an application for summary dismissal, contrary to the rationales of ensuring judicial independence and finality (to the extent possible) of all judgments.

110. Further, any rule of immunity that enhances the likelihood of judicial officers having to later give evidence of their state of mind when deciding cases to defeat a claim against them will not only provide the perverse “powerful incentive[]” spoken of by O’Connor J in Forrester v White for judges to avoid making hard decisions, but will also undermine the protection afforded to judicial officers from being “compelled to answer as to the manner in which they have exercised their judicial powers”, which is itself an aspect of judicial independence. Judges are required to “give their reasons for their decisions – once” and, “[i]f it were otherwise, their impartiality would be compromised”. The prospect of judges giving evidence about what was said to be their actual reasons or state of mind when deciding a matter, as opposed to their published reasons, would undermine judicial independence and finality of judgments, and the public interest each serves.

111. For these reasons, the scope of immunity afforded to inferior court judges must: be clear in definition and application; be capable of summary application; not be tied to any contestable meaning of “jurisdiction”; and not invite any inquiry into the judicial officer’s state of mind. The formulation of the immunity given by this Court in Gallo, and more specifically in Re East, meets this description.

112. As there should not be any difference between the scope of the immunity afforded  to a superior court judge and an inferior court judge, this Court should now confirm that the scope of the immunity as stated in Re East applies to judges of both superior and inferior courts, save that it should be expressed as immunity from actions arising out of acts done in the exercise, or purported exercise, of their judicial function or capacity. Describing the immunity as including any purported exercises of the judicial function confirms that the scope of the immunity extends to the circumstance where the court to which the judge is appointed ceases to have jurisdiction over the relevant matter or the judge commits a jurisdictional error in dealing with the relevant matter over which the court has jurisdiction. The characterisation of the judge’s acts is to be undertaken objectively. Instances of acts that fall outside the immunity have already been noted.

113. This common law rule of immunity not only applies to this Court but to all courts referred to in s 71 of the Constitution,including any court of a Territory and any “court of a State” as referred to in s 77(iii) of the Constitution (irrespective of whether those courts are invested with federal jurisdiction). It is not necessary to determine whether the immunity extends to any other “courts”, or to determine the scope of judicial immunity from criminal responsibility at common law.

Outcome of Judge Vasta’s appeal

114. Despite the many and egregious errors in Judge Vasta’s treatment of Mr Stradford, at all times Judge Vasta was acting in the purported exercise of the judicial function of a judge of the Federal Circuit Court. It follows that Judge Vasta’s actions were protected by judicial immunity. He is not liable to Mr Stradford.

The orders of the Court were as follows:

160. It follows that all three appeals must be allowed, the orders of the primary judge must be set aside, and the proceedings brought by Mr Stradford against each appellant must be dismissed. The Commonwealth and Judge Vasta each agreed not to seek costs from Mr Stradford in this Court and not to seek to disturb the costs order in Mr Stradford’s favour made by the primary judge. Queensland’s appeal was removed into this Court on conditions to the same effect. The Commonwealth agreed to pay Mr Stradford’s reasonable costs of the three appeals on a party-party basis.

The link to the full judgment is here.