Mansfield J
Mansfield J refused to make an order stipulating that if gender restricted preservation evidence was given and the judge then appointed to hear the proceeding was a woman, the applicant would be entitled not to adduce that evidence at trial. His Honour observed that such an order was unnecessary because: (i) the uncontested operation of s 46(d) of the Federal Court of Australia Act 1976 (Cth) was that preservation evidence is subject to judicial discretion and does not automatically become evidence in the hearing of the proceeding; and (ii) the discretion under s 46(d) is guided by s 82(2) of the NTA, which provides that the court may take account of the cultural and customary concerns of Indigenous Australians so long as to do so does not unduly prejudice any other party to the proceedings. Mansfield J also noted that parties must appreciate that the judge hearing a matter has a role and presence which is an inevitable part of the exercise of judicial power under Chapter III of the Constitution, regardless of whether the judge is male or female.