Egregious departure from role of judge': federal judge blasted for unfairness
- Category: Corrupt Magistrates and Judges
- Created: Monday, 26 August 2019 14:56
- Written by Michaela Whitbourn - Sydney Morning Herald
Brisbane-based Judge Salvatore Vasta, who has developed a reputation for clashing with litigants, courted controversy this year after he jailed a father of two for a maximum of 12 months for contempt of court in family law proceedings.
He told the man in that case, whose former wife was strenuously opposed to him going to jail, to "bring your toothbrush" after he allegedly failed to hand over all his financial records.
In a scathing judgment in February, the Full Court of the Family Court said Judge Vasta's conduct in the case gave rise to a "gross miscarriage of justice".
In a similarly excoriating judgment on Monday, the Full Court of the Federal Court found Judge Vasta had denied procedural fairness to a self-represented man in a workplace dispute by interrupting him repeatedly, and later asking security to remove the man from his courtroom for "refusing to answer the questions of the court".
The man, Michael Gambaro, was not unresponsive to the judge's questions.
In a joint judgment, Justices Andrew Greenwood and Darryl Rangiah said he was "unfairly removed from the courtroom during the hearing", there was "no justification" for it, and Mr Gambaro was "unjustifiably denied the chance to be heard".
Mr Gambaro was "usually not permitted to say more than a few words" before Judge Vasta would interrupt with a statement or question, and "on some occasions, Mr Gambaro was permitted to say one sentence and was interrupted during his second sentence", they said.
"On no occasion was he permitted to complete more than two consecutive sentences," Justices Greenwood and Rangiah said.
The joint judgment said "the extent and nature of the primary judge’s interventions went well beyond the legitimate ends of seeking to clarify, understand and test Mr Gambaro’s case" and "there was no apparent justification" for repeated threats to charge Mr Gambaro with contempt.
"The threats should not have been made," Justices Greenwood and Rangiah said.
They added Judge Vasta's "intimidating, aggressive and overbearing conduct eventually resulted, in our view, in Mr Gambaro being unable to answer his Honour’s confusing questions".
Judge Vasta was "frequently aggressive, rude and overbearing", including when he told Mr Gambaro: "What is so important that you would risk the wrath of the court in trying to tell me that there is something more important. Tell me what it is."
Justices Greenwood and Rangiah said Judge Vasta's "interventions both undermined the proper presentation of Mr Gambaro’s case and represented such an egregious departure from the role of a judge presiding over an adversarial hearing that it unduly compromised his Honour’s capacity to objectively evaluate the evidence".
They said Judge Vasta had displayed "acute sensitivity" to being interrupted by Mr Gambaro and responded with "unnecessary force and severity": "Do not ever interrupt me. Do not ever. You’ve been told many times when I talk your mouth goes closed. You do not ever interrupt me or you will be cited for contempt. I’m not putting up with your rubbish."
Justices Greenwood and Rangiah overturned Judge Vasta's decision on a preliminary issue and remitted the matter to the Federal Circuit Court to be decided by another judge.
In a separate jugdment, Justice John Reeves agreed that Mr Gambaro had been denied procedural fairness and said "nothing said in these reasons should be taken as detracting from the force of the observations made in the majority judgment about the unfair manner in which the primary judge dealt with Mr Gambaro".
He would have made different orders in the appeal, but the ruling of the majority judges decided the case.
The peak body for the legal profession, the Law Council of Australia, has previously called for a federal judicial commission to handle complaints against federal judicial officers in the wake of damaging judgments involving Judge Vasta.
NSW has an independent Judicial Commission to investigate complaints about state-based judges and magistrates, but there is no federal equivalent. Complaints about federal judges must be made to the court in question, and may then be referred to the Attorney-General.
Attorney-General Christian Porter said the court had its own complaints process and he was satisfied that all federal courts take complaints seriously.
A spokesperson for the Federal Circuit Court said that "while the court is not at liberty to discuss individual cases, the judge in question has had an extremely heavy workload over the past three years and since his appointment in 2015" and he had "delivered over 1240 judgments".
"In addition, he had the added pressure of holding senior administrative roles within the court for the past 12 months. The judge has agreed to stand down from these roles and is receiving mentoring in appropriate areas to fully assist and support the judge to fulfil his duties."
The spokesperson said the court had "a comprehensive complaints procedure" and it "assesses each complaint and takes action as appropriate in response to the gravity of the complaint".
"The Chief Judge has a number of steps available to him, including; counselling, mentoring and in exceptional circumstances, the judge in question may be temporarily removed from sitting.
"In addition, last year the court introduced substantial measures to assist and support judicial officers in performing their duties. This includes a more rigorous induction process for new judges, a formal and ongoing mentoring program, closer management and monitoring of judgments, and a counselling process with judges of the superior courts. This includes, when necessary, counselling from retired judges on particular areas of practice."
Source : https://www.smh.com.au/national/egregious-departure-from-role-of-judge-federal-judge-blasted-for-unfairness-20190826-p52kxg.html