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Judge Salvatore Vasta successfully sued for false imprisonment
The facts
In 2021, Judge Vasta was sued for $2M for false imprisonment of a party that appeared before him.
The proceedings arose from what happened on 6 December 2018, namely when Judge Vasta made the following declaration and order:
1. That the Applicant [MR STRADFORD] be sentenced to a period of imprisonment in the [X Correctional Centre] for a period of twelve (12) months, to be served immediately with the Applicant to be released from prison on … 2019, with the balance of the sentence to be suspended for a period of two (2) years from today’s date.
In the reasons for judgment delivered extemporaneously, Vasta J wrote that:
“The matter went before Her Honour Judge Turner on 26 November 2018. Her Honour ordered that the matter be adjourned for hearing of a contempt application. What Her Honour found was that there had been compliance with order 3(b), (c), (d), (e), (f), (g) and (i) of my order, but there had not been compliance with orders (a), (h), (j), (k), (l), (m), (n) and (o) of my orders. For that reason, Her Honour found that the Applicant husband was in contempt of my orders and sent it to me to deal with as I had foreshadowed in my orders.”
In fact, Judge Turner had made no such determination.
As a result of Order 1 above, the husband was deprived of his liberty and imprisoned.
Statutory provisions
Part XIIIB of the Family Law Act, which consists of s 112AP, deals specifically with contempt of court. Section 112AP(1) provides that the section applies to a contempt of court that either “does not constitute a contravention of an order under this Act” or “constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court”.
Section 17 of the Federal Circuit Court of Australia Act provided that:
“17 Contempt of court
(1) The Federal Circuit Court of Australia has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.
(2) Subsection (1) has effect subject to any other Act.
(3) The jurisdiction of the Federal Circuit Court of Australia to punish a contempt of the Federal Circuit Court of Australia committed in the face or hearing of the Federal Circuit Court of Australia may be exercised by the Federal Circuit Court of Australia as constituted at the time of the contempt.”
Section 35 of The Family Law Act provided that:
35 Contempt of court
Subject to this and any other Act, the Family Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.
The decision
The written reasons for judgment of Justice Michael Wigney from the outset made it fairly apparent what the result would be:
“The applicant in this proceeding was the victim of a gross miscarriage of justice. He was detained and imprisoned for contempt following what could fairly be described as little more than a parody of a court hearing. He spent seven days in prison before being released. The order that resulted in his incarceration was subsequently set aside. The central issue in this proceeding is whether he is entitled to a remedy to compensate him for the injury and loss suffered by him as a consequence of that lamentable incident…
e spent five miserable days in a police watch house in Brisbane before being transported to a correctional facility operated by the third respondent, the State of Queensland. He spent another two difficult days in that facility before he was released on bail pending an appeal.
There could be no real dispute that the Judge made a number of fundamental and egregious errors in the purported exercise of his power to punish Mr Stradford for contempt. He sentenced Mr Stradford to imprisonment for contempt without first finding that Mr Stradford had in fact failed to comply with the orders in question. He erroneously believed that another judge had made that finding, though exactly how he could sensibly have arrived at that position in the circumstances somewhat beggars belief. He also failed to follow any of the procedures that he was required to follow when dealing with contempt allegations and otherwise failed to afford Mr Stradford any procedural fairness. He effectively pre-judged the outcome. Imprisonment was a fait accompli.”
Full story:
The drums roll for Drumgold’s legal career
Sofronoff KC said he was “deeply disturbed” by Shane Drumgold’s ignorance of ethical principles and accused him of a “Pilate-like detachment”, invoking the moment Pontius Pilate washed his hands of Jesus’s fate, letting the mob decide who should be crucified.
In our view, Sofronoff KC was right not to make any declaration of Drumgold’s fitness to remain on the roll of lawyers. That fell outside of the scope of the inquiry. Nevertheless, the findings automatically support an inference that Drumgold should no longer remain a lawyer.
Sofronoff KC’s inquiry initially looked like it would be about little more than looking into a spat between the ACT Office of Prosecutions and the Australian Federal Police, who held different views about the merits of the prosecution of Bruce Lehrmann for allegedly raping Brittany Higgins in Parliament House.
This is now looking like the biggest legal scandal in Australia since the Lawyer X fiasco. Like the Lawyer X fiasco, this involves a flagrant breach of the fundamental rules that govern the conduct of lawyers. In some ways, the two scandals are mirror images of one another. Whilst Drumgold’s conduct kept the defence in the dark and deprived them of material they were entitled to, Nicola Gobbo’s conduct involved disclosing matters to police that should have never been disclosed because of the duty of confidence that she owed her clients. Gobbo was struck off for her fundamental betrayal of her clients.
A Prosecutor holds a particular duty to act in fairness towards an accused and the Court. Drumgold’s conduct shows that he apparently lost sight of the nature of his role, and the serious responsibilities of that role. He also apparently overlooked the fact that Brittany Higgins was not his client, and even if she had been, his overriding duty was to the administration of justice and he had no right to mislead the Court or to keep evidence from the defence that it had a right to.
Full story: https://sterlinglawqld.com/the-drums-roll-for-drumgolds-legal-career/
Anthony Albanese goes the full Mussolini with Ministry of Truth
As great as it might have been to have our first Italian Australian Prime Minister, that is no excuse for Anthony Albanese to turn into Mussolini and try to use the powers of the government to surveil his political critics and require social media companies to censor them.
This is pretty much what is happening with a bill he proposes to make into law.
The Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2023 is about stopping websites and online social media platforms allowing content that the government in all its wisdom thinks is misleading and harmful.
Anthony Albanese has been Prime Minister for just over a year, and already he is trying to become Il Duce.
Albo has gone the full Commo and wants to determine what is true and what is not true. As if he would know. He doesn’t even know the unemployment rate or the cash rate:
Anthony Albanese probably wants to prohibit people from comparing him to Il Duce online, even though he is acting a bit like the fascist Italian dictator.
We should not be surprised. Remember how Labor in its dying days of office last time tried to regulate the media to stop it from criticising its poor performance?
We were warned that it wont be easy under Albanese. With inflation still very high and now crackdowns on free speech, that has certainly turned out to be true.
This is yet another sinister leftist attempt to curb free expression.
Ben Roberts-Smith appeals defamation defeat
Last month, the Federal Court found Roberts-Smith had committed war crimes and upheld the defence of contextual truth in dismissing his claims.
Roberts-Smith is contesting some of the factual findings including all findings he committed murder, contending that Justice Anthony Besanko “cherrypicked” evidence in his judgment.
Read more:
https://sterlinglawqld.com/ben-roberts-smith-appeals-defamation-defeat/
Sterling Law secures indemnity costs order against QBE
Background
For the last 4 years, we doggedly pursued a claim on behalf of a client who was kicked by a horse.
By the time our client saw a solicitor of our firm, he had been denied WorkCover because on review it was determined he was not a worker within section 11 of the Workers’ Compensation and Rehabilitation Act 2003. Things were looking very grim. It seemed that there was no way for our client to access compensation or any damages.
Our Legal Practitioner Director decided to instead pursue a damages claim under the Personal Injuries Proceedings Act 2002 (PIPA). Subsequently, at the PIPA compulsory conference, one lawyer for a defendant asserted that we had erred by not following the process under the Workers’ Compensation and Rehabilitation Act 2003 instead. All lawyers at the compulsory conference except our Legal Practitioner Director were in complete agreement that the claim had no merit, and our client only received offers of $nil under PIPA.
When we commenced proceedings, the defendants applied to strike out the claim on the grounds that we had not complied with the Workers’ Compensation and Rehabilitation Act 2003 and by pursuing the claim under PIPA we had selected the wrong statute. Our Legal Practitioner Director appeared sans Counsel against two barristers and successfully resisted this attempt to stop the claim in its tracks.
Barry Nilsson, solicitors for QBE Insurance and one of Brisbane’s top insurance firms, still gave us no chance. Neither did the other lawyers representing the defendants, including Counsel. Even a District Court Judge who is a silk highly knowledgeable in civil matters suggested that our client may have been an independent contractor and therefore no duty of care was owed to him.
Subsequently, the matter proceeded to trial and in one of the greatest upsets in Queensland legal history, our client was 90% successful on liability with damages awarded. No appeal has been filed against this decision. Argument about costs immediately ensued and the decision on costs was reserved so that QBE’s lawyers could make further submissions on costs.
Costs
The remaining issue to be determined was the costs of the proceeding.
On 23 April 2021, we had offered to settle for $130,000 exclusive of the WorkCover refund but inclusive of costs and all other statutory refunds.
On 2 November 2021, we offered to settle for $150,000 inclusive of costs and all statutory refunds.
Neither offer was accepted by any of the defendants.
Full story: https://sterlinglawqld.com/sterling-law-secures-indemnity-costs-order-against-qbe/
Ben Roberts-Smith loses defamation case on contextual truth
The facts
Highly decorated former soldier Ben Roberts-Smith VC MG was the subject of 16 media stories that collectively alleged among other things that he had murdered civilians in Afghanistan and committed an act of domestic violence against a woman.
Roberts-Smith brought three actions in the Federal Court of Australia for defamation. The first action was brought against Fairfax Media Publications Pty Limited, Mr Nick McKenzie, Mr Chris Masters and Mr David Wroe. The second action was against The Age Company Pty Limited, Mr Nick McKenzie, Mr Chris Masters and Mr David Wroe. The third action was brought against The Federal Capital Press of Australia Pty Limited, Mr Nick McKenzie, Mr Chris Masters and Mr David Wroe. The three proceedings have been heard together.
The stakes on both sides were enormous in this incredibility costly case relating to the reputation of a highly decorated former soldier who was awarded the Victoria Cross (VC) for bravery. On the one hand, Australia’s most celebrated soldier’s reputation was on the line because he had been accused of war crimes and other awful acts. On the other, a very costly loss for the defendants may well have had a chilling effect on public interest reporting.
Relevant Defamation Law
A plaintiff is said to have been defamed if a publication causes the reasonable person to think less of them: Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4.
To be defamatory, the matter must injure the plaintiff’s reputation by lowering them in the estimation of others, exposing them to hatred, contempt or ridicule or causing them to be shunned or avoided.
Defamatory meaning can arise from the natural and ordinary meaning or true innuendo of the matter. True innuendo refers to matter which is defamatory as a result of an audience’s knowledge of certain extrinsic facts.
Section 25 of the Defamation Act 2005 provides that:
“It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.”
Section 26 of the Defamation Act 2005 provides that:
“26 Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (“contextual imputations”) that are substantially true, and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.”
Federal Court of Australia decision
The following imputations were admitted by the defendants to have been conveyed from the articles sued on or found by Justice Anthony Besanko to have been conveyed:
(1) Roberts-Smith while a member of the SASR, murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him (Imputation 1).
(2) Roberts-Smith broke the moral and legal rules of military engagement and is therefore a criminal (Imputation 2).
(3) Roberts-Smith disgraced his country Australia and the Australian army by his conduct as a member of the SASR in Afghanistan (Imputation 3).
The second group of articles were published on 10 and 9 June 2018. Roberts-Smith claimed that the following imputations were conveyed or communicated by the Group 2 articles:
(1) Roberts-Smith while a member of the SASR, committed murder by pressuring a newly deployed and inexperienced SASR soldier to execute an elderly, unarmed Afghan in order to “blood the rookie” (Imputation 4).
(2) Roberts-Smith while a member of the SASR, committed murder by machine gunning a man with a prosthetic leg (Imputation 5).
(3) Roberts-Smith while a member of the SASR, murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him (Imputation 1).
(4) Roberts-Smith having committed murder by machine gunning a man in Afghanistan with a prosthetic leg, is so callous and inhumane that he took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer drinking vessel (Imputation 6).
Roberts-Smith was not named in the Group 1 articles or the Group 2 articles. A soldier called “Leonidas” was referred to. By the end of the trial, there was no dispute about the identification of Roberts-Smith in the Group 1 and Group 2 articles.
The third group of articles were published on 11 and 10 August 2018. Roberts-Smith was named in these articles and there was never any identification issue. Roberts-Smith claimed that the following imputations were conveyed or communicated by the Group 3 articles:
(1) Roberts-Smith committed an act of domestic violence against a woman in the Hotel Realm in Canberra (Imputation 7).
(2) Roberts-Smith is a hypocrite who publicly supported Rosie Batty, a domestic violence campaigner, when in private he abused a woman (Imputation 8).
(3) The applicant as deputy commander of a 2009 SASR patrol, acquiesced in the execution of an unarmed Afghan by a junior trooper in his patrol. (Imputation 9).
(4) Roberts-Smith during the course of his 2010 deployment to Afghanistan, bashed an unarmed Afghan in the face with his fists and in the stomach with his knee and in so doing alarmed two patrol commanders to the extent that they ordered him to back off (Imputation 10).
(5) Roberts-Smith as patrol commander in 2012 authorised the assault of an unarmed Afghan, who was being held in custody and posed no threat (Imputation 11).
(6) Roberts-Smith engaged in a campaign of bullying against a small and quiet soldier called Trooper M which included threats of violence (Imputation 12).
(7) Roberts-Smith threatened to report Trooper J to the International Criminal Court for firing at civilians, unless he provided an account of a friendly fire incident that was consistent with the applicant’s (Imputation 13).
(8) Roberts-Smith assaulted an unarmed Afghan in 2012 (Imputation 14).
However, despite finding in Robert Smith’s favour on the defamatory imputations that had been conveyed, Justice Besanko determined that the defendants had established on the balance of probabilities that many of those imputations were substantially true, particularly the most serious ones.
This decision is a disaster for Roberts-Smith because it amounts to a declaration that he is a war criminal.
Full story: https://sterlinglawqld.com/ben-roberts-smith-loses-defamation-case-on-contextual-truth
Lying lab boss Cathie Allen belatedly sacked
Cathie Allen lied about her the probity of her role in the 2018 change in DNA samples testing, lied about deliberately providing false information, lied about covering her tracks and lied about whether she was lying.
Sofronoff KC found that Allen had tried to cover up her “grave maladministration involving dishonesty” using a “deliberately crafted series of lies and misleading dodges”.
It has since been revealed that Allen was sacked in a formal letter sent to her legal team.
Full story:
Graeme Page KC’s bankruptcy led to loss of practicing certificate
In October this year, we were the first to report on the demise of the career of Graeme Page KC, who was caught appearing in Court representing clients without a practicing certificate on numerous occasions.
Bankruptcy
Our investigations unit has uncovered that Page went bankrupt on 21 February 2019, after committing an act of bankruptcy on 3 April 2018 due to his unpaid tax debts.
However, on 24 May 2019, Page’s bankruptcy was set aside by Federal Court Justice Rangiah. This may explain why a bankruptcy search of Page does not yield any results.
No practicing certificate
Due to his personal solvency issues, Page was required to disclose his income tax returns and his quarterly BAS statements, but subsequently failed to do so, resulting in his practicing certificate not being renewed. Page blamed the pandemic, workload and his health issues for these failures, but the Bar Association resolved that he was not a fit and proper person, with its President Tom Sullivan concluding that Page had shown “blatant disregard for the ethical responsibilities that come with holding a practising certificate”.
A source at the QLD Bar has informed us that aware of his issues with the Bar Association, other learned Counsel offered to assist Page with his tax affairs, but Page failed to accept such offers.
Subsequently, Page engaged in legal practice without a practicing certificate, resulting in the Chief Justice ordering him to cease doing so.
We are also informed that soon after the injunction was made, Page was found again appearing in the Federal Circuit and Family Court, and that then-Bar Association President Tom Sullivan had to come in and drag Page out of Court.
Full story:
https://sterlinglawqld.com/graeme-page-kcs-bankruptcy-led-to-loss-of-practicing-certificate/
Iain Hall's SANDPIT 