Deaf man and pregnant wife denied sign language interpreter … Sandy Street dismisses disability discrimination application … Birth of a child equated to “buying a bag of chips”… Full Feds take action and overturn the decision on all grounds … Judge’s language gives rise to apprehensions of bias … Naaman Zhou reports from ringside

A decision by Judge Sandy Street of the FCC has been overturned by the Full Feds, this time in a case about disability discrimination that saw the judge liken childbirth to “buying a bag of chips”.

In February, Street said that Kate Hinton, a pregnant woman whose husband is deaf, did not have a discrimination case against a hospital that refused to provide sign language interpretation for their child’s birth.

HH’s rapid ex-tempore judgment dismissed the claim as “a trifle … a try on … an abuse of process”, allowing counsel only five hours to prepare a response to the a proposed strike out.

A Full Federal Court found this to be both incorrect and a denial of procedural fairness, with the judge’s language giving “rise to an apprehension of bias”.

Kate Hinton was pregnant and intending to deliver her baby at Westmead Private Hospital when she was informed by staff that her husband, who is deaf, would not be provided with AUSLAN sign language interpretation during the birth.

Westmead refused to provide the service for free as Mr Hinton was not the patient.

Hinton complained to the Australian Human Rights Commission, but this was terminated in September 2015. In November, she filed an application in the Federal Circuit Court, alleging that the hospital had contravened the Disability Discrimination Act, 1992 (Cth).

Hinton specified both direct and indirect discrimination contrary to ss.5, 6, 7 and 24 of the Act, claiming to have suffered discrimination as the legal associate of a person with a disability.

Judge Street dismissed the case in one day, ruling that the claim was “inarguable”.

He invoked s.17A of the FCCA Act, which allowed him to dismiss the case summarily for having “no reasonable prospect” of success.

Street told Kylie Nomchong for Hinton, that if her client succeeded, this would mean that every time the appellant sought a service anywhere, her husband would have to be provided with an interpreter.

Counsel replied that the services here were medical services – if Hinton was incapacitated, the husband needed to be capable of communicating consent for emergency procedures. It differed from simply “buying a bag of chips” with her husband standing next to her.

“The applicant’s husband was not the recipient of maternity services [thus] the hospital was not providing any services to the applicant’s husband.”

Counsel said at the time that to make the applicant construct a case “on the hop” may constitute procedural unfairness, which HH denied.

The Full Federal Court overturned Street’s decision on all grounds.

Street had applied the Disability Discrimination Act incorrectly. Under s.7, Hinton and her husband were associates and thus could be joined as a party, meaning the Act applied to her as it did her husband.

Further, Street’s use of the “bag of chips” analogy was far-fetched. The interpreter claim was dependent on specific medical procedures:

“It is hardly a “trifle” (and still less, equivalent to buying a ‘bag of chips’) for a woman not to be able to deliver her baby in the hospital of her choice.”

Finally, it was an “inescapable fact that the appellant was denied procedural fairness by the primary judge”.

It was unfair to “expect the appellant … to identify all of the material facts and legal principles on which the claims depended in just under five hours”.

In response to the language employed by HH in the primary judgment, the Full Feds observed:

“The fair minded lay observer would identify from the strong conclusions (‘bag of chips … try on … baseless trifle’) … that his Honour might be caused to decide the case on other than its merits.”

The language “would give rise to an apprehension of bias on his Honour’s part in the mind of the reasonable observer”.

The decision was be set aside and remitted to a Federal Circuit judge other than Judge Street.

This is not the first of the judge’s disability discrimination decisions to come unstuck.