Judge Alexander “Sandy” Street of the Federal Circuit Court has come under further fire from the Full Federal Court of Australia for a recent case in which he dismissed a cerebral palsy sufferer’s claim for discrimination for Virgin Australia’s refusal to accommodate his guide dog on a flight with him.
Judge Street was appointed by Commonwealth Attorney General George Brandis last year, and is the son of Sir Laurence Street, NSW Chief Justice from 1974-1988, and grandson of Sir Kenneth Street, NSW Chief Justice from 1950-1959, and great-grandson of Sir Phillip Whistler Street, NSW Chief Justice from 1925-1933. Judge Street has come under fire for a number of decisions which have been overturned on appeal, where he has made errors of law and dealt with matters summarily and unfairly. In a case currently on appeal in the Full Federal Court, the appellants have taken the unusual move of filing an affidavit sworn by the editor of the Federal Law Reports, which demonstrates that Judge Street has only found in favour of the migrant plaintiffs in 0.79 per cent of the time in his tenure, compared with an average before other judges of 10-12%. That’s 2 out of 254 cases. Further, between January and June 2015, Judge Street disposed of 286 cases, where his 8 judicial colleagues in the same period disposed of a combined 357 cases.
In a recent case, David Mulligan sued Virgin Australia in Judge Street’s court, seeking declaratory orders and damages. After hearing the parties’ submissions, Judge Street delivered an ex tempore judgment, that is, his Honour gave judgment right away. On appeal in the Full Federal Court, which was joined by the Australian Human Rights Commission as amicus curiae, the Court commented on his Honour’s decision to deliver an ex tempore judgment that: “Any experienced judge may have hesitated – and, perhaps, avoided error.” The Court commenced its consideration of the appeal with the sentence: “The primary judge’s reasons for judgment reveal numerous appellable errors.”
Judge Street erred in some of the following ways:
- erred in having regard to the wrong subsection of the applicable legislation;
- erred in determining that a subsection applying to visually or hearing impaired persons only applied if a person was either visually or hearing impaired but not both (Mr Mulligan suffers visual and hearing impairment);
- erred in not deciding one of the points pleaded by Mr Mulligan, assuming that his earlier (erroneous) reasoning had dispatched with that point; and
- erred in that the CASA instruments applying to Virgin’s case constituted law.
The Court also found that Judge Street made “numerous” other appellable errors, but with the above and other errors established, it was not necessary to consider them all in order to dispose of the appeal in Mr Mulligan’s favour.
It appears quite extraordinary to us that not only did this judicial officer appear to deal with a matter in a rushed and unfair manner, but that his judgment was riddled with errors so numerous that an appeal court considered it necessary to only focus on a selection of the most egregious.
Sydney Criminal Defence Lawyers is following this story closely and will provide updates as appropriate.
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Federal Circuit Court Judge Sandy Street criticised again in Full Federal Court in guide dog case