A Federal Court Judge who has been under scrutiny previously, has been criticised again by the full Federal Court.
THE STORY
Federal Circuit Court Judge Salvatore Vasta decided a landmark case last year that saw unprecedented consequence for an employer who underpaid his staff and deceived ASIC. Leigh Jorgensen (Jorgensen), who was the owner operator of Trek North Tours in Cairns, was sentenced by Judge Vasta to 12 months’ imprisonment and fined him $84,954 for transferring company funds into a trust before back-paying workers, breaching freezing orders. He was also sentenced for contempt of Court. This is the first case by the Fair Work Ombudsman ever to result in a gaol term, creating a new precent and working as a general deterrent to employers who use the ‘corporate veil’ to avoid liability regarding underpayments of employees.
APPEAL
The Appeal to the Full Federal Court has become a scathing critique of Circuit Court Judge Vasta. His Honour had previously been scrutinised by other members of the Court for his conduct; being rude to litigants, threatening imprisonment and making errors of fact and law. Judge Vasta has previously ordered a same-sex couple to baptise their child and sentenced a father of two children to imprisonments, for contempt of Court. The Full Federal Court made up of Justices Peter Greenwood, John Reeves and Michael Wigney found that Judge Vasta “significantly interrupted and disrupted” Jorgensen when he gave evidence and was “sarcastic, disparaging and dismissive” of his evidence. Specific instances of Judge Vasta’s misconduct throughout last year’s proceedings was heard by the Full Court:
- Judge Vasta took over the cross-examination of Jorgensen himself, asking about 40% of the questions.
- Judge Vasta responded in a condescending manner to Jorgensen when he informed the Judge that he did not understand a proposition which was put to him during questioning. Judge Vasta responded with childish remarks such as “what, am I talking Swahili or something”.
- Whilst Jorgensen was providing his evidence, Judge Vasta made the following sarcastic remarks: “don’t you dare play dumb with me”, accusing him of playing a “stupid charade”, and suggested that the witness was going to “razzle dazzle us like Billy Flynn in Chicago” and “have the big bamboozler right at the end”.
The Full Federal Court Bench made the following findings:
- They held Judge Vasta’s “aggressive and, at times, unfair questioning appeared on occasion to confuse Mr Jorgensen and cause him to make concessions he may not otherwise have made”.
- “His Honour also frequently cut Mr Jorgensen off while he was endeavouring to explain critical aspects of his case, in particular his belief that the impugned transfers fell within the ‘ordinary and proper course of business’ exception”.
- “The extent and nature of his interventions were such that it is impossible to avoid the conclusion that Mr Jorgensen was relevantly impeded from ‘giving his account in such a way as to do himself justice’”.
- The Full Court ordered referred the matter for retrial, setting aside Jorgensen’s convictions, stating there had been a substantial miscarriage of justice.
DISCIPLINING JUDGE VASTA
It has been indicated earlier this year that the Law Council was considering formal action against the Federal Circuit Judge. This could include referring him to Parliament due to issues in cases he has adjudicated.
The Judicial Commission of New South Wales advises about the process undertaken for disciplining judicial officers on their website. There is also a link to their complaint form and instructions on this page. They explain the importance of having the ability to hold judicial officers to account:
Community confidence in the judiciary and their decisions is integral to the judicial system: court users and members of the public have a right to expect that judges and magistrates will behave impartially, courteously, ethically and to the highest standards of judicial conduct. The Judicial Commission’s complaint function enhances judicial accountability by:
- ensuring complaints about the ability and behaviour of judicial officers are investigated quickly, effectively and objectively
- promoting good practices and high standards of judicial performance
- improving public confidence in the administration of justice.
The Commission states that the Judicial Officers Act 1986 (NSW) provides a way for members of the public to complain about the behaviour or ability of judges, but not their decisions. These complaints are then examined by an independent body. Further, they emphasise on their website that:
Our complaint function is protective: we have no power to discipline judicial officers, only to protect the public from judicial officers who are not fit for office or lack the capacity to discharge their duties. Our function is also to protect the judiciary from unwarranted intrusions into their judicial independence. The Commission cannot:
- provide legal advice or legal representation
- review a case for judicial error, mistake or other legal grounds
- investigate a complaint about a matter that is currently before a court
- discipline or sanction a judicial officer
- investigate allegations of criminal or corrupt conduct
- investigate a complaint about a retired judicial officer, federal judicial officer, arbitrator, assessor, registrar, chamber registrar, member of a tribunal or legal practitioners.
CONDUCT OF A JUDICIAL OFFICER
Importantly, the Australasian Institute of Judicial Administration has published a Guide to Judicial Conduct which sets out a practical guide to the principles which judicial officers in Australia should always follow. It relevantly states that the principles applicable to judicial conduct have three main objectives:
- To uphold public confidence in the administration of justice;
- To enhance public respect for the institution of the judiciary; and
- To protect the reputation of individual judicial officers and of the judiciary.
Further, the principles against which judicial conduct should be tested to ensure compliance with the stated objectives are:
- Impartiality;
- Judicial independence; and
- Integrity and personal behaviour.
Clearly, Judge Vasta’s behaviour in the above case goes against all the principles outlined above. Most obviously, is the principle of impartiality. If a Judge is taunting or ridiculing a witness, particularly when that witness is the defendant in the proceeding, and takes on fierce cross-examination of this witness, and adds his own commentary in a sarcastic tone, this is not the appropriate conduct of a Judge, no matter what the defendant is charged with doing. Judge Vasta’s manner went so far as to interrupt the proceedings and cause a miscarriage of justice to the defendant.