The submission was in response to Justice Michael Wigney’s 2023 decision in the Federal Court that Judge Vasta was guilty of gross procedure by denying a man “any modicum” of procedural fairness.

While on the bench of the then-Federal Circuit Court, Judge Vasta imprisoned the man – known only as Mr Stradford – in December 2018 for contempt of court after he failed to produce documents.

The order was found to be “invalid and of no legal effect”.

Judge Vasta relied on the immunity defence but was unsuccessful.

In the outline of oral argument, published on the High Court’s website, Judge Vasta said an inferior court judge who is exercising the judicial power of the Commonwealth “has, or should have, no lesser immunity than that afforded to a superior court judge”.

“Immunity from civil liability is conferred by the common law, not as a prerequisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest.

“This underlying principle applies equally to a judge of the [Federal Circuit Court of Australia],” Judge Vasta’s submissions said.

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Judge Vasta added there was no “compelling justification” for there being “different rules with different judges”, particularly if an inferior court judge is still operating within the federal judicial system.

In the outline published by the Commonwealth, it was alleged the primary judge also erred in finding an inferior court judge has no immunity from civil liability, “even when the judge has subject-matter jurisdiction”, and if there are exceptional circumstances.

Its first error was common law “has not recognised a distinction between the civil immunity of superior and inferior court judges”.

Alternatively, even if the law does draw a distinction, the Commonwealth said inferior court judges “enjoy absolute immunity with respect to matters within their jurisdiction”.

Another key question to be determined by the High Court is the defence of police and jailers when executing invalid court orders.

The primary judge held an enforcing officer would be liable for false imprisonment when acting in the ordinary course of their duties, but any defence to such a claim excluded police and jailers.

The Commonwealth submitted that the judge should have held “it is a defence to the tort of false imprisonment if a person was acting contrary to enforce or execute a judicial officer in accordance with their duties, unless the person knew the order was invalid”.

Mr Stradford was rewarded $309,000 in damages for the time spent behind bars, during which he claimed to have been intimidated and physically assaulted by other prisoners.

The full bench of the Family Court found it was a “gross injustice”.

“We are driven to conclude that the processes employed by the primary judge were so devoid of procedural fairness to the husband, and the reasons for judgment so lacking in engagement with the issues of fact and law to be applied, that to permit the declaration and order for imprisonment to stand would be an affront to justice,” the bench said.