Lindon, L.J. v Kerr, J.D.C. & Ors [1995] FCA 403

Lindon, L.J. v Kerr, J.D.C. & Ors [1995] FCA 403

The mere fact that a bench is comprised solely of male judges is not sufficient to create an apprehension of bias. The doctrine of necessity applies: where judges cannot be replaced without delay or where there are insufficient numbers for a balanced gender bench, the court must proceed as constituted. There was no issue of gender bias raised by the facts of this case.

Parties
Appellant: Leonard John Lindon; First Respondent: Hon JDC Kerr MP - Minister for Justice; Second Respondent: Hon MH Lavarch MP - Attorney-General; Third Respondent: Michael Rozenes QC - DPP; Fourth Respondent: Ashley Heath; Fifth Respondent: Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
13 June 1995
Procedural Posture
Appeal / Motion to Disqualify Court for Alleged Gender Bias
Outcome
application dismissed
Legal Topics
Apprehension of Bias, Doctrine of Necessity, Constitution of the Bench, Gender Bias in Courts
Administrative Law Judicial Procedure Apprehension of Bias Doctrine of Necessity Constitution of the Bench Gender Bias in Courts

Case Brief

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Parties

Leonard John Lindon

Appellant

Hon JDC Kerr MP - Minister for Justice

First Respondent

Hon MH Lavarch MP - Attorney-General

Second Respondent

Michael Rozenes QC - DPP

Third Respondent

Ashley Heath

Fourth Respondent

Commonwealth of Australia

Fifth Respondent

Procedural Posture

Appeal / Motion to Disqualify Court for Alleged Gender Bias

Legal Issues

  1. 1 Whether the constitution of the Full Court by male judges constitutes apprehension of bias on an issue of gender
  2. 2 Whether the doctrine of necessity applies to the constitution of the bench when gender composition is raised

Ratio Decidendi

The mere fact that a bench is comprised solely of male judges is not sufficient to create an apprehension of bias. The doctrine of necessity applies: where judges cannot be replaced without delay or where there are insufficient numbers for a balanced gender bench, the court must proceed as constituted. There was no issue of gender bias raised by the facts of this case.

Court Disposition

application dismissed

Orders

  • Application that the judges should disqualify themselves is dismissed.