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Catherine Holmes, the Chief Justice of Queensland has a piece in The Australian concerning some of the unfair and ill-informed criticisms of sentencing decisions in recent years:

https://specialreports.theaustralian.com.au/1437724/cover/

Importantly, she does not say that decisions should not be criticised. However, given that judges are not supposed to respond to criticisms or defend their own decisions, personal attacks against judges and criticisms of decisions which do not show the reasons for the decisions undermine confidence in the Courts, and can threaten judicial independence:

“I am concerned about tendencies in media and political discourse to speak about courts and their decisions in ways which can, directly or indirectly, undermine judicial independence.

This may sound a little precious, so I had better start by emphasising that I am not suggesting that anyone should desist from criticising judicial decisions. Discussion and criticism are to be expected in a healthy democracy.

My plea is for better informed criticism, because public confidence is essential to the preservation of what I contend is a very good legal system; and for better targeted criticism, because there seems to be an increasing, damaging willingness to attack that system as a whole on the strength of dissatisfaction with a very small number of decisions.”

The article may be behind a paywall, so a subscription may be required.

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Litigation is very tough on litigants. They find themselves in an environment where in spite of their strong feelings about their case, their emotions carry no weight and are seldom acknowledged by the court. Furthermore, their fate at trial is the hands of a third party who may rule against them, with disastrous consequences. Adverse findings can be made against them. There is an incredible amount of stress associated with such risks. And of course, there is the massive amount of money they have to pay towards their own legal costs.

In return, the least litigants are entitled to expect is a judge who properly hears their case and considers it in a fair minded way.

Unfortunately, this is not what has been happening for many cases before Judge Sandy Street:

In a scathing appeal judgment two weeks ago, Federal Circuit Court judge Sandy Street was found to have “manifestly failed to give adequate reasons, and in places reached conclusions that were plainly wrong”, when he threw out a claim brought by a teacher who had been denied a termination payment promised by the Sydney Catholic school system.

Judge Street — whose father, Sir Laurence, grandfather and great grandfather were all former NSW chief justices — had delivered his decision “ex tempore”, or on the spot, without retiring from the bench for consideration.

He has been repeatedly criticised on appeal, including in at least seven recent cases uncovered by The Weekend Australian, for failing to give proper reasons when delivering judgments in this way.

Since his appointment by the Coalition on January 1, 2015, Judge Street has had at least 61 cases overturned, 14 of these since early March.

Many of his judgments have been delivered ex tempore, helping him to dispose of about 1370 cases in a 26-month period, while the other eight Sydney general federal law judges combined disposed of just 2290 cases.

But in his decision, Federal Court justice Robert Bromwich said the “perceived efficiency” of this approach could be “illusory”, and cause litigants to “suffer” in some cases.

“When ex tempore judgments are used inadequately or inappropriately, the quality of justice delivered may fall below acceptable standards, perceived efficiency may be illusory … costs may be greatly increased (especially due to an appeal) and the final resolution of a dispute may be delayed, rather than accelerated,” he said.”

Whilst the Federal Circuit Court does have an incredible workload given the number of family law matters and the variety of other federal matters which come before it, it is important for the interests of justice that litigants are afforded a fair hearing and have their cases considered in a fair and balanced manner.

Interestingly, when he was at the bar Judge Street called for a fairer process with respect to the appointment of barristers to silk. The Federal Court clearly wishes for fairer processes in Judge Street’s courtroom.

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On 4 November 2016, Judge Jarrett of the Federal Circuit Court of Australia dismissed a claim brought by Cindy Prior under section 18C of the Racial Discrimination Act 1975 (Cth) as a result of posts published on Facebook by students at the Queensland University of Technology that complained of being kicked out of an ‘Indigenous only’ computer lab. This ends a 3 year long legal saga and ordeal for the students concerned.
Continue reading “Identity politics, political correctness and section 18C of the Racial Discrimination Act”

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Witnesses are usually assessed according to their credibility and reliability.

In cases where there are disputes of fact, the performance of the relevant witnesses will be critical, as the case is likely to be determined according to which witnesses are believed and which are not.

This article discusses dome of the do’s and don’ts involved in giving evidence at a hearing.
Continue reading “How to be an impressive witness in court”

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To: The Human Rights Working Group

Queensland Law Society

RE CALL FOR SUBMISSIONS ON A BILL OF RIGHTS

Dear Sir/Madam,

We refer to the invitations for submissions concerning a Bill of Rights in Australia in the February 2016 edition of Proctor.

We write to voice our opposition to a Bill of Rights, for the reasons below.
Continue reading “Response to invitations for submissions concerning a Bill of Rights in Australia”