Forge v. Australian Securities and Investments Commission (C7/2005); Australian Securities and Investments Commission v. Forge (C12/2005); Forge v Australian Securities and Investments Commission (S301/2005)
[2006] HCA 44 (5 September 2006)Forge v Australian Securities and Investments Commission (C7/2005)
William Arthur Forge & Ors Plaintiffs AND Australian Securities and Investments Commission & Ors Defendants
Australian Securities and Investments Commission v Forge (C12/2005)
Australian Securities and Investments Commission Plaintiff AND William Arthur Forge & Ors Defendants
Forge v Australian Securities and Investments Commission (S301/2005)
William Arthur Forge & Ors Applicants AND Australian Securities and Investments Commission & Anor Respondents
Judges:
Gleeson CJ
Gummow
Kirby
Hayne
Callinan
Heydon
Crennan JJ
Subject References:
Constitutional law (Cth)
Chapter III
State Supreme Courts
Acting Judges
Section 37 of the Supreme Court Act 1970 (NSW) provided for appointments to act as a judge, for a period not exceeding 12 months
Former Federal Court Judge appointed as an Acting Judge of the Supreme Court of New South Wales under a series of commissions pursuant to s 37 of the Supreme Court Act
Whether the appointments as an Acting Judge were validly made
Whether s 37 of the Supreme Court Act was valid
Whether Acting Judges, when appointed other than on an occasional and exceptional basis, substantially impair public confidence in the Supreme Court's institutional integrity and impartiality and prevent that Court from answering to the constitutional description of "Supreme Court of any State"
Distinctions between permanent Judges and Acting Judges
Significance of a substantial increase in the number of Acting Judges appointed to the Supreme Court, the incidence of reappointing such Acting Judges and the duration of such appointments since 1989
Whether changes in appointments of Acting Judges amounts to a fundamental alteration of the character and composition of the Supreme Court
Relevance of the fact that Acting Judges are typically retired Judges.
Constitutional law (Cth)
No objection to the appointment of the Acting Judge in question taken at trial or on appeal to the New South Wales Court of Appeal
Whether parties contesting the validity of appointment prevented from doing so by reason of acquiescence or waiver
Opposing parties did not submit acquiescence or waiver, if any, prevented objection to validity of appointment
Whether High Court should consider effect of acquiescence or waiver.
Constitutional law (Cth)
Judicial power of the Commonwealth
Vesting in State courts
Federal character of the Commonwealth
Power of State Parliament to confer function incompatible with exercise by State court of federal judicial power
Whether appointments of Acting Judges in large numbers consistent with judicial process and Chapter III of the Constitution.
Judges
Acting Judges
Validity of orders made by Acting Judge
Whether such orders valid regardless of validity of appointment of the Acting Judge by reason of the de facto officers doctrine.
Corporations law
Transitional provisions of Ch 10 of the Corporations Act 2001 (Cth)
ASIC brought proceedings, in 2001, against the parties contesting validity of the appointment of the Acting Judge in question alleging contravention, in 1998, of civil penalty provisions of the Corporations Law of New South Wales
Whether, after the repeal of the relevant civil penalty
provisions of the State corporations law and the enactment of the Corporations Act, the proceedings alleging contravention could be brought.
"Acting Judges"
"court"
"impartiality"
"institutional integrity"
"judicial independence"
"Supreme Court of any State"
Legislative References:
Constitution - ss 71; 72; 73; 75; 76; 77(iii)
Corporations Act 2001 (Cth) - Ch 10
Judiciary Act 1903 (Cth) - s 39(2)
Supreme Court Act 1970 (NSW) - s 37
Judgment date: 5 September 2006
ORDER (C12/2005)
1. The questions reserved are answered as follows:
- 1.
- As to the validity of the appointments under the Supreme Court Act 1970 (NSW) of the Honourable Michael Leader Foster to act as a Judge of the Supreme Court of New South Wales, and the capacity of his Honour to act in the cause:
None of the successive appointments of the Honourable Michael Leader Foster to act as a judge of the Supreme Court of New South Wales was invalid.
- 2.
- As to the construction and validity of the transitional provisions of Chapter 10 of the Corporations Act 2001 (Cth):
The proceedings commenced in the Supreme Court of New South Wales by the Australian Securities and Investments Commission against William Arthur Forge and others on 26 April 2001 and tried before Foster AJ constituted a matter arising under a law made by the Parliament within the meaning of s 76(ii) of the Constitution.
2. The Defendants (other than the Fifth Defendant) to pay the Plaintiff's costs.