Kennedy v Secretary, Department of Industry (No 2)

In the matter of Kennedy v Secretary, Department of Industry (No 2), the applicant, Mr Kennedy, sought the disqualification of the judge from further participation in the hearing on the basis of alleged bias. The case was heard in the Federal Court of Australia, with the Chief Justice Gordon refusing the application for disqualification and dismissing it with costs. Mr Kennedy argued that the judge's failure to respond to his correspondence and the perceived lack of empathy demonstrated a reasonable apprehension of bias. The court had to determine whether the application for disqualification was firmly established and whether there was any basis for concluding that the judge was biased.

The court examined the principles for disqualification of a judge, noting that an application must be firmly established and that a fair-minded observer would not form a view of reasonable apprehension of bias. The court further considered whether Mr Kennedy had waived any entitlement to rely on facts pre-dating a particular hearing. The court found no basis for concluding that actual bias had been demonstrated. The court emphasised that a judge should remain open to honest criticism based on rational grounds and that litigants should be free to express their concerns, subject to constraints necessary to ensure public confidence in the judicial process.

In conclusion, the court rejected Mr Kennedy's application for disqualification, finding that no reasonable apprehension of bias was established. The court dismissed the application with costs. The court also found that Mr Kennedy had waived any entitlement to rely on facts pre-dating a particular hearing. The court's decision reinforces the importance of maintaining public confidence in the judicial process while allowing for honest criticism based on rational grounds.