Salvatore Vasta from the Circus Court is the subject of an appeal in a fair work case where the appellant is seeking to have the judge’s bias apprehended.

Justice Michael Feutrill of the Federal Court has asked the applicant, Dr Reuben Kirkham, to replead the grounds of his appeal dealing with Judge Vasta’s conduct, specifically:

Excessive interventions and statements; failure to accord the appellant procedural fairness; denial of a reasonable opportunity for the appellant to present his case; and an “egregious departure from the role of a judge presiding over an adversarial hearing that it unduly compromised the judge’s advantage in objectively evaluating the parties’ submissions from a detached distance (dust of the conflict ground)”.

In May last year, Vasta struck out Reuben’s statement of claim against Monash University, which had not extended his employment as a computer scientist past the probation period.

Dr Kirkham, who was self-represented, tried to submit that Judge Vasta should not conduct the proceedings on the pleadings, but on a less formal basis. That submission led to this:

HH: No. Are you telling me now – don’t try and weasel out of this. You’re not a politician. You answer my question directly, sir. Because there is nothing worse than someone trying to weasel out of things. You keep criticising Monash University for that sort of behaviour and you’re doing exactly the same. Now, you answer my question.

KIRKHAM: Well, I —

HH: No, you answer my question, or this will – this will be over with very quickly. When you said to me in December 2024 that you knew what you were doing, were you telling me the truth then?

KIRKHAM: Yes, I thought I knew what I was doing. Yes, correct.

HH: Okay, so that means that you now know that you did not know what you were doing.

KIRKHAM: Okay, so I was not aware at the time that —

HH: No, no, no, answer my question, not your own. That means – it’s yes or no, that you now know that you did not know what you were doing in December 2024.

KIRKHAM: I had an incomplete picture, sir, but let’s —

HH: No, no, don’t weasel out of that.

KIRKHAM: I’m not weaselling out. I was trying to explain —

HH: Either you knew what you were doing or you didn’t.

KIRKHAM: I think I knew what I was doing, but any – let’s put that to one side and keep moving —

HH: I know that. I know that you thought you knew what you were doing, but are you saying now that you didn’t know what you were doing, because either you did know what you were doing or you didn’t know what you were doing. There’s no – you’re not – you can’t be a little bit pregnant, sir. Did you know what you were doing or did you not? Simple question. I want a simple answer.

KIRKHAM: No, would be the – part of the answer, but —

HH: Okay, so you didn’t know what you were doing. No, that’s it. You didn’t know what you were doing.

KIRKHAM: I got confused. I – it’s a bit more complicated than that, but I was not aware —

HH: No, it isn’t.

KIRKHAM: — that these Federal Court Rules applied. I – and this – it may – it’s improbable – you go – imagine you’re a litigant in person, right. You go through the court’s website. You go through the whole process. I did not know that a statement of claim —

HH: No, no, don’t go on about – don’t go on about it. Remember what I said to you? Remember what I said, that you – in the future, you cannot come to me and say to me, ‘I’m sorry. I didn’t know what I was doing because I’m self-represented’. I told you, that excuse does not wash, and here I am six months later, and you’re coming to me with that excuse. It doesn’t wash.

KIRKHAM: It’s not an excuse, but anyway —

HH: — okay, as to what you want. There are two alternatives. One, you say, ‘I do not rely upon this amended statement of claim any more’. If you say that, it will be withdrawn immediately, and we will see what happens from there, but I warn you that you will be paying costs, because I think that is unreasonable to be doing it at this time, or secondly, you can say, ‘No, I rely upon that amended statement of claim,’ and you wish to tell me why it is that that amended statement of claim has delineated a cause of action. So those are your two options.

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Justice Feutrill said:

“The exchange also arguably contained an element of prejudgment regarding costs if the applicant chose to withdraw the statement of claim …”

Salvatore also “evidently took exception to the way the applicant tried to explain the issues raised in his pleading in a manner that was arguably disruptive and (or) a departure from the role of an impartial decision-maker in an adversarial proceeding.”

The examples are numerous …

KIRKHAM: These are formatting points. All right. I agree I may have – I’ve probably not used the structure you want. All right. But let’s park that —

HH: Whoa, whoa, whoa. You do that again, and this – this is over. Okay. That is – you are not going to insult me again. You understand.

KIRKHAM: I was not trying to insult you. I’m just —

HH: I told you once already, do not use that tone of voice. Do not phrase things in the way that you have, and you’ve gone and done it again. I’m not going to tolerate it, you understand?

KIRKHAM: Yes, I’m not trying to —

HH: If you do it again, that will be the end of your submissions because you would have insulted the court a third time. I’m not going to stand for it. Understand?

KIRKHAM: I will do my best, sir. Yes.

HH: No, you don’t do your best. You just don’t insult the court. Have I made myself clear?

KIRKHAM: Yes, sir.

HH: Okay. I hear it one more time, that will be the end of your submissions.

KIRKHAM: I apologise. I’m not intending to insult the court. It’s just —

HH: Come on.

KIRKHAM: Yes, I was —

HH: Come on, keep saying, ‘I’m not doing it the way you want’. It has got nothing to do with the way I want. It’s what the law says. And I’ve explained that to you, and you keep harping back as if I’m part of some elite boys club that is trying to keep you out. And you use that phraseology to keep insulting the court. Do it again at your peril. Understand?

≈   ≈   ≈

Vasta also made a number of arguably “unduly dictatorial, pejorative and (or) mocking statements about the applicant and the applicant’s pleading and submissions.”

As can be seen here …

KIRKHAM: Which is in the enterprise agreement as – are we going to argue about whether I’m an employee – was an employee or not covered by the enterprise agreement?

HH: Sorry. Are you the one taking over this, are you? Are you going to keep talking to me in that tone, Dr Kirkham? Is that the way in which you are going to be communicating with the court, with that sort of tone?

KIRKHAM: I’m sorry, sir. I’m struggling —

HH: No, you’re not sorry. You did that deliberately. Now, if that – if that is the way in which you are going to behave, this hearing will be a very, very short hearing. I am not going to tolerate it. Okay. I am the one who is asking questions. I am he one who is trying to point out what the law prescribes and trying to show to you that this needs to be explained, as Mr Avallone explained to you, as to how it is that a statement of claim must be set out.

[snip]

KIRKHAM: I’m doing my best, but I am finding this – I’m not going to pretend I’m not finding it a frustrating process. I mean —

HH: Well, when it is that you don’t know what you’re talking about, close your mouth and open your ears. That would be the biggest help. Okay. Because I have dealt with these sorts of matters very much for the last 10 years. I would like to think I know what I’m talking about when I’m talking about pleadings. But where it is – and I’m used to dealing with self-represented litigants all the time, but I do not get the level of disrespect from them that I get from you. And it’s not a situation with which I really will put up with anymore. Okay. And I know it may be hard, but you need to actually listen instead of being, as it were, pig-headedly adamant that you are right and we’re wrong. And anything that doesn’t fit within your particular worldview is because of the boys club or the lawyers club getting together to exclude you. Okay. That’s where this disrespect is all coming from, because you can’t get that out of your head. So start listening to me for a change.

[snip]

HH: You know, if you can’t get to the point, you know – my goodness, you know, Abraham Lincoln, 272 words for Gettysburg Address, and after that, we knew exactly why, despite all of the carnage that has been wrought in the Civil War, that it was still worth continuing. You, you’ve given me 173 pages here, 68 pages here, another 800 pages somewhere else, and I still cannot understand what it is that you are saying as to why it is your statement of claim is appropriate.

[snip]

HH: Okay, so you know what the law is, so, go on. Good. Educate me.

KIRKHAM: All right. You can correct me if I get it wrong.

HH: I’ve only done it for 10 years, so —

KIRKHAM: Okay.

HH: I’m not a PhD in whatever you are a PhD in, so I have to bow to your superior intellectual abilities, so go on. You tell me what the law is.

Effectively, Judge Vasta dismissed the applicant’s claim.

Leave to appeal was granted with orders to file and serve a notice of appeal containing the grounds of appeal in terms “stripped of objectionable material and read with a view to genuinely trying to understand the nature of the applicant’s complaint and without undue regard to matters of technical pleading …”

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For scholars of the judicial method, aspects Sal’s priors can be examined here …

Vasta World: The “pumpkin eater” case … “Misunderstanding his task” … The Stradford damages case (“bring your toothbrush”) – the “grossest parody of a court hearing”: Wigney J … The Jorgensen case (“excessive, unwarranted and inappropriate interventions”).

Kirkham v Monash University (No. 2)