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)(Decision by: Gummow, Hayne, Crennan JJ)
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
GummowKirby
HayneCallinan
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
Decision by:
Gummow
Hayne
Crennan JJ
49. GUMMOW, HAYNE AND CRENNAN JJ. There are two issues that arise in the two matters in this Court [30] , and also in an application for special leave to appeal to this Court that was heard at the same time [31] . The first issue raises fundamental questions about the operation of Ch III of the Constitution. It concerns the validity of the legislation permitting appointment of acting judges of the Supreme Court of New South Wales. It is with this issue that these reasons deal first.
Acting judges
50. The Honourable Michael Leader Foster was, from 1987 until his retirement on 26 November 1998, a judge of the Federal Court of Australia. By successive appointments, each made by commission under the public seal of the State, Mr Foster was appointed to act as a judge of the Supreme Court of New South Wales for terms of 12 months commencing on 31 May 1999, 2000, 2001 and 2002. Between March and May 2002, during the third of these periods of appointment, he tried proceedings brought in the Supreme Court of New South Wales by the Australian Securities and Investments Commission ("ASIC") against Mr Forge and others in which ASIC alleged the commission of contraventions of certain civil penalty provisions of corporations legislation. On 28 August 2002, during the fourth period of appointment, Foster AJ delivered judgment in those proceedings. Were the appointments of Foster AJ that were in force when these proceedings were heard and determined validly made?
51. It will be necessary, later, to identify the relevant civil penalty provisions more precisely when considering the second of the issues that arise in this Court but that is a task that need not be undertaken in considering the validity of the appointments of Foster AJ. For the moment, it suffices to recognise that the trial was an exercise of federal jurisdiction, the proceedings instituted by ASIC being proceedings brought by or on behalf of the Commonwealth [32] .
52. Each appointment of Foster AJ was made in reliance upon the provisions of s 37 of the Supreme Court Act 1970 (NSW) which, in its terms, permits the appointment of a qualified person to act as a judge for a time not exceeding 12 months specified in the commission. Mr Foster was a "qualified person" because he had been a judge of the Federal Court of Australia [33] . Section 37 provides:
"(1) The Governor may, by commission under the public seal of the State, appoint any qualified person to act as a Judge, or as a Judge and a Judge of Appeal, for a time not exceeding 12 months to be specified in such commission.
(2) In subsection (1) qualified person means any of the following persons:
- (a)
- a person qualified for appointment as a Judge of the Supreme Court of New South Wales,
- (b)
- a person who is or has been a judge of the Federal Court of Australia,
- (c)
- a person who is or has been a judge of the Supreme Court of another State or Territory.
(3) A person appointed under this section shall, for the time and subject to the conditions or limitations specified in the person's commission, have all the powers, authorities, privileges and immunities and fulfil all the duties of a Judge and (if appointed to act as such) a Judge of Appeal.
(3A) The person so appointed may, despite the expiration of the period of the person's appointment, complete or otherwise continue to deal with any matters relating to proceedings that have been heard, or partly heard, by the person before the expiration of that period.
(3B) The person so appointed is entitled to be paid remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975. The remuneration payable to an acting Judge is to be paid to the acting Judge so long as his or her commission continues in force.
(4) A retired Judge of the Court or of another court in New South Wales (including a retired judicial member of the Industrial Commission or of the Industrial Relations Commission) may be so appointed even though the retired Judge has reached the age of 72 years (or will have reached that age before the appointment expires), but may not be so appointed for any period that extends beyond the day on which he or she reaches the age of 75 years.
(4A) A person who is or has been a judge of the Federal Court of Australia or of the Supreme Court of another State or Territory may be so appointed even though that person has reached the age of 72 years (or will have reached that age before the appointment expires) but may not be so appointed for any period that extends beyond the day on which he or she reaches the age of 75 years.
(5) The conditions or limitations specified in a commission under this section may exclude the whole or any part of the period of appointment from being regarded as prior judicial service (within the meaning of section 8 of the Judges' Pensions Act 1953) by the person.
(6) The provisions of section 36(4) and (5) apply to an acting Judge who acts as a Judge of Appeal in the same way as they apply to a Judge who acts as an additional Judge of Appeal." [34]
53. The parties who contended that the appointments of Foster AJ, for the terms ending 30 May 2002 and 30 May 2003, were invalid (Mr Forge and others) alleged that s 37 is wholly invalid. Their basic proposition was that the Supreme Court of New South Wales "as an institution must be made up of full-time permanent judges with security of tenure". But, in the end, these parties did not appear to stake all upon acceptance of this basic proposition. Rather, recognising that both before and after federation, legislation establishing the Supreme Courts of all of the colonies, and later all of the States, made provision for appointment of acting judges [35] , they accepted that some provision for acting appointments might be constitutionally valid. They contended, however, that the power given by s 37 was not limited "as to numbers and the circumstances in which acting judges may be appointed". They then further contended that s 37 could not be read down because, so they submitted, no satisfactory criterion could be devised which would sufficiently confine exceptions to the basic proposition that the court must be made up of full-time permanent judges with security of tenure. In particular, the parties alleging invalidity contended that qualitative criteria governing the appointment of acting judges, like "in special circumstances", or "for temporary needs or purposes", should be rejected and could not be applied to read down s 37 and thus confine the power to appoint acting judges.
54. As will later be explained, none of the opposite parties, and none of the Attorneys-General who intervened (all of whom supported the validity of s 37 and the appointments of Foster AJ), contended that the power given by s 37 was unlimited. All accepted, correctly, that properly construed, the power to appoint acting judges under s 37 of the Supreme Court Act was not unlimited. The question in these matters, they submitted, is whether those limits were transgressed, and they contended that they were not.
55. The questions that arise in connection with this first issue are questions which touch upon fundamental aspects of the structure of government. They concern the way in which the Supreme Court of a State is constituted and therefore concern the structure of the judicial branch of government. As was pointed out in D'Orta-Ekenaike v Victoria Legal Aid [36] :
"reference to the 'judicial branch of government' is more than a mere collocation of words designed to instil respect for the judiciary. It reflects a fundamental observation about the way in which this society is governed."
They are questions that will require examination of whether the institutional integrity of an essential element of the judicial branch of government has been compromised.
Chapter III
56. Although the issue concerns the constitution of a State Supreme Court it is necessary to begin the examination in the terms of the Commonwealth Constitution and Ch III in particular. The general considerations which inform Ch III of the Constitution were identified in R v Kirby ; Ex parte Boilermakers' Society of Australia [37] . Central among those considerations is the role which the judicature must play in a federal form of government. The ultimate responsibility of deciding upon the limits of the respective powers of the integers of the federation must be the responsibility of the federal judicature. That is why, as was pointed out in Boilermakers [38] , "[t]he demarcation of the powers of the [federal] judicature, the constitution of the courts of which it consists and the maintenance of its distinct functions become ... a consideration of equal importance to the States and the Commonwealth". But it also follows [39] that "[t]he organs to which federal judicial power may be entrusted must be defined, the manner in which they may be constituted must be prescribed and the content of their jurisdiction ascertained". It is these considerations that explain the provisions of Ch III of the Constitution. And it is these considerations that explain why it has been so long established by the decisions of this Court that it is beyond the competence of the federal Parliament to invest with any part of the judicial power of the Commonwealth any body or person, except a court created pursuant to s 71 of the Constitution and constituted in accordance with s 72, or another "court" brought into existence by a State or Territory that can be invested with federal jurisdiction.
57. Section 73 provides that this Court has jurisdiction "with such exceptions and subject to such regulations as the Parliament prescribes" to hear and determine appeals from all judgments, decrees, orders, and sentences "of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State". No exception or regulation prescribed by the Parliament may prevent this Court from hearing and determining any appeal from the Supreme Court of a State in any matter "in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council". It is plain, then, as was recognised in Kable v Director of Public Prosecutions (NSW ) [40] , that Ch III not only assumes, it requires, that there will always be a court in each State which answers the constitutional description "the Supreme Court of [a] State". Chapter III also assumes, but it may not require, that there will, from time to time, be courts other than the Supreme Courts of the States, in which federal jurisdiction may be invested. Thus, s 77(iii) gives power to the Parliament to make laws with respect to any of the matters mentioned in s 75 or s 76 "investing any court of a State with federal jurisdiction". It is in reliance on that power that s 39(2) of the Judiciary Act 1903 (Cth) provides that:
"The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it ..."
58. What is meant in s 71 of the Constitution by "courts" in the expression "such other courts as it invests with federal jurisdiction"? What is meant in s 77(iii) by "court" in the expression "any court of a State"?
59. In Kotsis v Kotsis [41] and Knight v Knight [42] , consideration was given to whether the reference in s 39(2) of the Judiciary Act to "Courts", and the reference to "court" in s 77(iii) of the Constitution, should be read as extending to permit the exercise of federal jurisdiction by an officer of a State court who was not a part of the court. In Kotsis v Kotsis , this Court held that the Supreme Court of New South Wales, as constituted by the then applicable State legislation [43] , consisted of the judges of the Court and that it did not include other officers of the Court, even if those officers were authorised to exercise part of its jurisdiction by the relevant State laws. It followed, so the Court held, that the jurisdiction invested in the Supreme Court of New South Wales by s 39(2) of the Judiciary Act could be exercised only by the judges of the Court, not by a Deputy Registrar who was not identified, by the relevant State legislation, as part of the Court. Knight v Knight reached like conclusions with respect to a Master of the Supreme Court of South Australia.
60. Kotsis v Kotsis and Knight v Knight were overruled in The Commonwealth v Hospital Contribution Fund [44] . This Court held that "court of a State" in s 77(iii) of the Constitution and "Courts of the States" in s 39(2) of the Judiciary Act meant the relevant court "as an institution" [45] , not the persons of which it is composed. Thus, regardless of whether a State court was constituted only by its judges, or was constituted by its judges and Masters, federal jurisdiction invested in the court could be exercised by a Master, Registrar or other officer of the court in whom the State legislation reposed the task, at least where the exercise of the jurisdiction by such a person remained subject to the supervision of the judges of the court on review or appeal [46] .
61. In this, and in other related respects, reference is often made to the aphorism that when the federal Parliament makes a law investing federal jurisdiction in a State court, the Parliament "must take the State court as it finds it". This proposition, most often associated with Le Mesurier v Connor [47] , but originating in the reasons of Griffith CJ in Federated Sawmill, Timberyard and General Woodworkers' Employees' Association (Adelaide Branch) v Alexander [48] , should not be misunderstood. The provisions of Ch III do not give power to the federal Parliament to affect or alter the constitution or organisation of State courts [49] . It may be accepted that the constitution and organisation of State courts is a matter for State legislatures. In that sense, the federal Parliament having no power to alter either the constitution or the organisation of a State court, the federal Parliament must take a State court "as it finds it". It does not follow, however, that the description which State legislation may give to a particular body concludes the separate constitutional question of whether that body is a "court" in which federal jurisdiction may be invested. It is only in a "court", as that word is to be understood in the Constitution, that federal jurisdiction may be invested.
62. Recognising that to be so reveals an important boundary to the power given to the Parliament by s 77(iii). The Parliament may not make a law investing federal jurisdiction in a body that is not a federal court created by the Parliament or that is not a "court" of a State or Territory. But there is another and different proposition that is to be drawn from Ch III which has significance for State legislation concerning State Supreme Courts.
63. Because Ch III requires that there be a body fitting the description "the Supreme Court of a State", it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description. One operation of that limitation on State legislative power was identified in Kable . The legislation under consideration in Kable was found to be repugnant to, or incompatible with, "that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system" [50] . The legislation in Kable was held to be repugnant to, or incompatible with, the institutional integrity of the Supreme Court of New South Wales because of the nature of the task the relevant legislation required the Court to perform. At the risk of undue abbreviation, and consequent inaccuracy, the task given to the Supreme Court was identified as a task where the Court acted as an instrument of the Executive [51] . The consequence was that the Court, if required to perform the task, would not be an appropriate recipient of invested federal jurisdiction. But as is recognised in Kable, Fardon v Attorney-General (Qld ) [52] and North Australian Aboriginal Legal Aid Service Inc v Bradley [53] , the relevant principle is one which hinges upon maintenance of the defining characteristics of a "court", or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court. It is to those characteristics that the reference to "institutional integrity" alludes. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies.
64. It is neither possible nor profitable to attempt to make some single all-embracing statement of the defining characteristics of a court. The cases concerning identification of judicial power reveal why that is so. An important element, however, in the institutional characteristics of courts in Australia is their capacity to administer the common law system of adversarial trial. Essential to that system is the conduct of trial by an independent and impartial tribunal [54] .
65. It by no means follows, however, that the only means of securing an independent and impartial Supreme Court is to require that the court is made up of none other than full-time permanent judges with security of tenure. This proposition, cast in absolute and universal terms, is not fundamentally different from a proposition that a State Supreme Court must be constituted by judges who have the same security of tenure as s 72 of the Constitution provides in respect of the Justices of this Court and of the other courts created by the Parliament. Yet Ch III makes no explicit reference to the appointment, tenure or remuneration of judges of State courts. Rather, s 71 refers to "such other courts as it [the Parliament] invests with federal jurisdiction", s 77(iii) speaks of "investing any court of a State with federal jurisdiction", and s 73 makes a number of references to the "Supreme Court" of a State. Questions of appointment, tenure and remuneration of judges of State courts are dealt with in Ch III only to whatever extent those subjects are affected by the identification of the repositories of invested federal jurisdiction as "any court of a State" and the identification of a court from whose judgments, decrees, orders and sentences an appeal may lie to this Court as "the Supreme Court of [a] State".
66. As explained in Ebner v Official Trustee in Bankruptcy [55] , effect has been given to the fundamental importance which is attached to the principle that a court must be independent and impartial by the development and application of the apprehension of bias principle. Even the appearance of departure from the principle that the tribunal must be independent and impartial is prohibited lest the integrity of the judicial system be undermined. As further explained in Ebner [56] , the apprehension of bias principle admits of the possibility of human frailty and its application is as diverse as human frailty. Thus when reference is made to the institutional "integrity" of a court, the allusion is to what The Oxford English Dictionary describes [57] as "[t]he condition of not being marred or violated; unimpaired or uncorrupted condition; original perfect state; soundness". Its antithesis is found in exposure, or the appearance of exposure, to human frailties of the kinds to which reference was made in Ebner .
67. In applying the apprehension of bias principle to a particular case, the question that must be asked is whether a judicial officer might not bring an impartial mind to the resolution of a question in that case. And that requires no prediction about how the judge will in fact approach the matter. Similarly, if the question is considered in hindsight, the test is one which requires no conclusion about what factors actually influenced the outcome which was reached in the case. No attempt need be made to inquire into the actual thought processes of the judge; the question is whether the judge might not (as a real and not remote possibility rather than as a probability) bring an impartial mind to the resolution of the relevant question.
68. The apprehension of bias principle has its application in particular cases. No unthinking translation can be made from the detailed operation of the apprehension of bias principle in particular cases to the separate and distinct question about the institutional integrity of a court. But the apprehension of bias principle is one which reveals the centrality of considerations of both the fact and the appearance of independence and impartiality in identifying whether particular legislative steps distort the character of the court concerned.
69. As noted at the outset of these reasons, the immediate issue is the validity of the appointments of Foster AJ. That depends upon whether s 37 of the Supreme Court Act was validly engaged and it is necessary first to construe s 37.
The construction of s 37
70. The better construction of the Supreme Court Act is that it distinguishes between appointment as a judge (or Chief Justice) or as a judge of appeal (or President), and appointment to act as a judge, or judge of appeal, for a term not to exceed 12 months. Appointment as a judge (or Chief Justice) [58] , or as a judge of appeal (or President) [59] , is appointment to an office which, subject to removal on an address of both Houses of the State Parliament [60] , is terminated only upon attainment of the retirement age of 72 years, sooner resignation by the office holder, or death. The appointee's remuneration may not be reduced during office [61] .
71. By contrast, s 37 of the Supreme Court Act provides for short-term appointments to act as a judge: the term may not exceed 12 months. During that term the appointee may not be removed from office, save on an address of both Houses of the State Parliament [62] , and the appointee's remuneration may not be reduced [63] . There is, however, a real and radical difference between an appointment to act as a judge for a term not longer than 12 months, and an appointment, as a judge, until a statutorily determined age of retirement (in this case 72 years of age [64] ). Of course, the older the person appointed as judge at the time of appointment, the less the difference may appear to matter. But even if it is assumed, contrary to experience, that a person might be appointed a judge when that person has less than 12 months before attaining the age of retirement, the person so appointed as judge is not eligible for reappointment to that office after the appointment expires by effluxion of time. By contrast, a person appointed under s 37 to act as a judge, if aged less than 72, is eligible for permanent appointment as a judge and, if aged less than 75, is eligible for reappointment as an acting judge. The outer limit to reappointment as an acting judge is that the appointee's term may not extend beyond the day that person turns 75 years of age [65] . It is the possibility of permanent appointment, and the possibility of reappointment as an acting judge, which marks the two cases of appointment as a judge and appointment to act as a judge as radically different.
72. Given that it distinguishes between acting and permanent appointments in the way described, the Supreme Court Act would not easily be read as permitting the appointment of so few persons as judges, and so many to act as judges, as would permit the conclusion that the court was predominantly, or chiefly, composed of acting judges. On the proper construction of the Act the power to appoint acting judges under s 37 would not extend to authorising the making of so many appointments. And none of New South Wales, ASIC, the Commonwealth or the interveners submitted that the Supreme Court Act should be read as permitting such an exercise of the power under s 37 to appoint acting judges. All accepted that the power to appoint acting judges was limited at least to this extent. Some contended that this was a conclusion that followed from the words of the Act; some accepted that constitutional considerations reinforced or required that conclusion.
73. No matter whether the conclusion, that s 37 does not give unlimited power to make acting appointments, is seen as following from the words of the Act, or as reinforced or required by constitutional considerations, it is a conclusion that proceeds from an unstated premise about what constitutes a "court". Thus, the conclusion may proceed from a premise that a court, or at least the Supreme Court, of a State must principally be constituted by permanent judges (who have tenure of the kind for which the Act of Settlement [66] provided: appointment during good behaviour for life, or, now, until a set retirement age, with no diminution of remuneration during tenure). Or the conclusion may proceed from a premise that is stated at a higher level of abstraction: that the courts, and in particular the Supreme Court, of a State must be institutionally independent and impartial. The first statement of the premise may be seen as focusing upon quantitative considerations. On what terms are most of the judges appointed? The second statement of the premise may be seen as pointing to qualitative rather than quantitative considerations. But both statements of the relevant premise rest ultimately upon considerations of the fact and appearance of institutional independence and impartiality.
74. The former statement focuses upon institutional independence and impartiality by emphasising the particular steps taken in the Act of Settlement to ensure judicial independence from the Executive: steps replicated in legislation establishing all the Supreme Courts of the colonies and the States. But Act of Settlement terms regulating tenure and security of remuneration are not the only statutory and other principles which support judicial independence and impartiality. Reference has already been made to the apprehension of bias principle - a principle of great importance in reinforcing the impartiality of the courts. And judicial independence refers not only to independence from the Executive, it refers to independence from other sources of influence.
75. Thus a comprehensive statement of principles supporting judicial independence would have to take account of the principles governing the immunity of judges from suit for judicial acts [67] . While it is not necessary to consider the detail of those rules, it will be recalled that different rules developed in respect of courts of record from those applying to inferior courts and that the development of the law relating to judicial immunity was bound up with the law relating to excess of jurisdiction and when a judicial decision was open to collateral attack [68] . That a judge is immune from suit serves a number of purposes, not least the need for finality of judicial decisions. But it is also a principle which forecloses the assertion that the prospect of suit may have had some conscious or unconscious effect on the decision-making process or its outcome.
76. Further, if attempting to state comprehensively the measures that have been taken to support judicial independence, it would be necessary to take account of not only the arrangements for remuneration of judges while in office but also the provision made for payment of pensions on retirement. The "remuneration", which s 72(iii) of the Constitution states shall not be diminished during continuance in office, includes non-contributory pension plan entitlements which accrue under the federal judicial pensions statute [69] .
77. Provision is made for judicial pensions for a number of reasons. One not insignificant reason is to reduce, if not eliminate, the financial incentive for a judge to seek to establish some new career after retirement from office. As was pointed out in argument, it may otherwise be possible to construe what a judge does while in office as being affected by later employment prospects.
78. No doubt the provisions that have been made to govern the security of both the tenure and the remuneration of judges are important in securing judicial independence and impartiality. But those provisions take their place in a much wider setting of principles that have been established or enacted and which also contribute to the maintenance of both the fact and the appearance of judicial independence and impartiality. For these reasons it is more useful to identify the premise that lies behind the contention that s 37 does not give an unlimited power to appoint acting judges as the more abstract premise described earlier: that the courts, and in particular the Supreme Court, of a State must be, and be seen to be, institutionally independent and impartial. Indeed, this statement of the relevant premise is no more than the particular application of a more general premise identified in Bradley [70] : "that a court capable of exercising the judicial power of the Commonwealth [must] be and appear to be an independent and impartial tribunal". It follows that, although these reasons are principally directed to the position of the Supreme Courts of the States, the conclusions reached about those courts would apply equally to the Supreme Courts of the Territories.
79. The last matter that should be mentioned in connection with identifying the premise that lies behind the conclusion that s 37 does not give an unlimited power to make acting appointments is that to allow any valid operation for s 37 denies the central tenet of the arguments advanced by those contending the provision is invalid. Those parties contended that the Supreme Court of New South Wales "as an institution must be made up of full-time permanent judges with security of tenure".
80. Both those asserting invalidity and those supporting validity referred to various overseas sources in aid of their argument. In the end, however, overseas analogies provide little sure guidance to the resolution of the issues that must now be considered and such references may even be apt to mislead. First, they may serve to obscure the particular historical and governmental setting in which the issues that now arise in this Court must be decided. Secondly, they are, in many cases, the product of interpreting and applying the text of particular constitutional, legislative, or international instruments. To take only two of the several examples given in argument, the recorder system in England and Wales cannot be understood without paying adequate attention to the historical distinctions between the Royal Courts and the Quarter Sessions and other inferior courts in which, before the Courts Act 1971 (UK), recorders sat. Nor can the several decisions made about the validity of appointment of temporary or part-time judicial officers in the Scottish judicial system be understood except as an application of the relevant European principles. The most that can be derived from overseas decisions is that impartiality and integrity are generally seen as essential characteristics of a court. Rather than examining those overseas decisions in detail, attention must be focused upon the consequences of the constitutional recognition in, and requirement of, Ch III, that there is and remain in each State the Supreme Court of that State.
81. It is convenient to deal now with three points that emerged at various times in the course of argument: first, a point about the position of courts of summary jurisdiction and the investing of federal jurisdiction in those courts; second, a point about the numbers of acting appointments made; and third, a point about the qualifications for appointment as an acting judge. Each was said to bear upon whether any exception should be admitted to the proposition that the judges of the Supreme Court of a State must all be full-time permanent appointees with security of tenure. Each was said to bear upon the ambit of any exception to that rule.
Courts of summary jurisdiction
82. Both before and long after federation, courts of summary jurisdiction have been constituted by Justices of the Peace or by stipendiary magistrates who formed part of the colonial or State public services. As public servants, each was generally subject to disciplinary and like procedures applying to all public servants. Thus, neither before nor after federation have all State courts been constituted by judicial officers having the protections of judicial independence afforded by provisions rooted in the Act of Settlement and having as their chief characteristics appointment during good behaviour and protection from diminution in remuneration. That being so, if the courts of the States that were, at federation, considered fit receptacles for the investing of federal jurisdiction included courts constituted by public servants, why may not the Supreme Court of a State be constituted by an acting judge?
83. The question just posed assumes that all courts in a hierarchy of courts must be constituted alike. In particular, it assumes that inferior State courts, particularly the courts of summary jurisdiction, subject to the general supervision of the Supreme Court of the State, through the grant of relief in the nature of prerogative writs and, at least to some extent, the process of appeal, must be constituted in the same way as the Supreme Court of that State. Yet it is only in relatively recent times that the terms of appointment of judicial officers in inferior courts have come to resemble those governing the appointment of judges of Supreme Courts.
84. History reveals that judicial independence and impartiality may be ensured by a number of different mechanisms, not all of which are seen, or need to be seen, to be applied to every kind of court. The development of different rules for courts of record from those applying to inferior courts in respect of judicial immunity and in respect of collateral attack upon judicial decisions shows this to be so. The independence and impartiality of inferior courts, particularly the courts of summary jurisdiction, was for many years sought to be achieved and enforced chiefly by the availability and application of the Supreme Court's supervisory and appellate jurisdictions and the application of the apprehension of bias principle in particular cases. But by contrast, the independence and impartiality of a State Supreme Court cannot be, or at least cannot so readily be, achieved or enforced in that way. Rather, the chief institutional mechanism for achieving those ends, in the case of the Supreme Courts, has been the application of Act of Settlement terms of appointment to the Court's judges coupled with rules like the rules about judicial immunity mentioned earlier in these reasons.
85. That different mechanisms for ensuring independence and impartiality are engaged in respect of inferior courts from those that are engaged in respect of State Supreme Courts is, no doubt, a product of history: not least the historical fact that the inferior courts of England were often constituted by persons who were not lawyers or, if legally trained, held no permanent full-time appointment to office. But the differences that may be observed as a matter of history between, on the one hand, the inferior courts in Australia and their English forbears and, on the other, the colonial, and later State, Supreme Courts, do not deny the central importance of the characteristics of real and perceived independence and impartiality in defining what is a "court" within the meaning of the relevant provisions of Ch III. The observed differences do no more than deny that Act of Settlement terms of appointment are defining characteristics of every "court" encompassed by the expression, in s 77(iii), "any court of a State". But the existence of these observed differences does not necessarily mean that particular mechanisms for ensuring the independence and impartiality of State Supreme Courts may not be defining characteristics of those, constitutionally recognised and required, bodies. In examining what are those defining characteristics, it is necessary to consider whether Act of Settlement terms of appointment for all judges constituting a State Supreme Court are essential to the institutional integrity of those courts.
Numbers of acting appointments
86. Although those asserting the invalidity of s 37 denied that there could ever validly be an acting appointment, much emphasis was given in their oral arguments to the number of persons who had been appointed as acting judges of the Supreme Court of New South Wales between 2001 and 2004. Some of those persons were appointed for less than 12 months; some, like Foster AJ, were appointed for successive terms of 12 months. At 31 December of each of the years 2001 to 2004, at least five persons held a commission to act as a judge and at least a further three held a commission to act as a judge of appeal. But it is by no means clear what significance those asserting invalidity sought to attach to this information. As noted earlier, the position adopted by those asserting invalidity was that s 37 was wholly invalid and that, accordingly, no acting appointment could be made. The most that can be gleaned from the information about the numbers appointed pursuant to the power given by s 37 is that it appears to have been used in such a way that during the years 2001 to 2004 there were always some acting judges. What does not appear, however, is how often those persons sat as judges or why it may have been thought necessary or desirable to appoint them to act. And unless some quantitative criterion is adopted as the limit on the power given by s 37, the number appointed, standing alone, is of little relevance to the problem that now arises, it not being contended that the Court was predominantly or chiefly constituted by acting judges. Rather, all that seemed to be drawn from the number of acting judges who had been appointed was that that number was not insignificant when compared with the number of permanent appointees.
87. No quantitative criterion should be adopted as limiting the exercise of power under s 37. Any such criterion would inevitably be arbitrary in its content and application. To explain why that is so, it is as well to notice some matters of history.
88. For many years it was common for colonial, and later State, legislatures to provide for the number of judges that constituted the Supreme Court of the colony or State concerned. There was no obligation to appoint persons to every office thus created. The statutorily identified number of judges fixed the maximum number that might be appointed. Often, legislation provided for the appointment of a person to act in stead of a judge who was absent on leave, or whether in consequence of sickness or some other reason was temporarily unable to perform the duties of office [71] . The application of provisions of that kind was, then, limited by the number of permanent office holders and by the occasion for making an acting appointment. But some Australian colonial and State legislation also provided for the appointment of acting judges in addition to the permanent office holders who constituted the court. Early examples of that are to be found in the District Courts Act 1858 (NSW) [72] and the Judicial Offices Act 1892 (NSW) [73] . The application of those provisions was not explicitly limited numerically and the occasion for exercising the power to make an acting appointment was often stated in very general terms. Now it is uncommon for State legislation to fix the number of judges who may be appointed to a Supreme Court. Now the legislation permitting appointment of acting judges is not ordinarily hinged upon absence or incapacity of a serving judge. The Supreme Court Act does not fix the number of judges who may be appointed to the Supreme Court of New South Wales. Section 37 is not hinged upon absence or incapacity of a serving judge.
89. In a large court like the Supreme Court of New South Wales the temporary absence of one judge may have less effect on the work of the court as a whole than the temporary absence of a judge in a smaller court. But both at federation and today, the State Supreme Courts include courts whose membership is not numerous. To hold that no acting judge may be appointed to any State Supreme Court may therefore have large consequences for the work of those smaller courts. Those consequences would be felt not only if, as the Attorney-General for Tasmania submitted, the members of the court were afflicted by some pandemic illness or other disaster, but also if a case were to come before the court in which all or most of the judges were embarrassed.
90. If it is accepted that some acting appointments may lawfully be made under s 37, a quantitative criterion for marking the boundary of permissible appointments would treat the circumstances seen by the appointing authority as warranting the appointment of an acting judge as wholly irrelevant to the inquiry about validity. It would assume that the external observer considering the independence and impartiality of the court as a whole should, or would, ignore why it had been thought necessary to appoint those who had been appointed to act as judges. Thus the necessity presented by sickness, absence for other sufficient cause, or the embarrassment of a judge or judges in one or more particular cases would be treated as irrelevant; all that would matter is how many have been appointed. And that, in turn, presents the question: how would the particular number or proportion of acting judges that would compromise the institutional integrity of the court be fixed? That is a question to which none but an arbitrary answer can be given. Rather than pursue the illusion that some numerical boundary can be set, it is more profitable to give due attention to the considerations that would have to inform any attempt to fix such a boundary: the fact and appearance of judicial independence and impartiality.
"Qualified" persons
91. As noted earlier, s 37 of the Supreme Court Act permits appointment of "any qualified person" to act as a judge. Qualified persons extend beyond those who are or have been a judge of the Federal Court of Australia or a judge of the Supreme Court of another State or Territory [74] , they extend to any "person qualified for appointment as a Judge of the Supreme Court of New South Wales" [75] . Persons qualified for appointment as a judge of the court are now those who hold or have held "a judicial office" of New South Wales, the Commonwealth, or another State or a Territory [76] , and legal practitioners of at least seven years' standing [77] . (Reference to the holding of "a judicial office" was added in 2002 by the Courts Legislation Amendment Act 2002 (NSW).)
92. Different considerations affect these different classes of qualified persons. The prospect of appointment as a permanent judge, or reappointment as an acting judge, will most likely bear differently upon those who, at the time of appointment as an acting judge, are judges of the Federal Court or the Supreme Court of another State or Territory from the way in which they bear upon retired judges, judges of other, inferior, courts, or legal practitioners in active practice. The person in active practice may be thought by some to be concerned about prospects of future permanent appointment, or about the effect of what is done while an acting judge upon resumption of practice at the end of the period of appointment. The person who holds some other judicial office may be thought to be concerned about prospects of promotion to the Supreme Court. The retired judge may be thought to be concerned about the prospect of being able to continue to act as a judge beyond retirement and beyond the statutory retiring age with its consequences for continued professional engagement and enjoyment of a larger income. Is the availability of such arguments to be left for consideration under the principle of apprehended bias or are they considerations that bear upon the institutional integrity of the court?
93. Satisfaction of the constitutional description "Supreme Court of [a] State" is not sufficiently met by application of the apprehension of bias principle in particular cases. Kable demonstrates that the institutional integrity of the court must be preserved and that the preservation of that institutional integrity operates as a limit upon State legislative power. The institutional integrity of State Supreme Courts is not inevitably compromised by the appointment of an acting judge. But the institutional integrity of the body may be distorted by such appointments if the informed observer may reasonably conclude that the institution no longer is, and no longer appears to be, independent and impartial as, for example, would be the case if a significant element of its membership stood to gain or lose from the way in which the duties of office were executed.
94. There are circumstances, perhaps many circumstances, in which appointing a serving judge of the Supreme Court of one State to act as a judge of the Supreme Court of another State for a limited time (as, for example, to hear a matter in which the permanent judges of the court would be embarrassed) could, of itself, have no adverse effect on the institutional integrity of the court. It could have no adverse effect on the institutional integrity of the court because the person appointed in the circumstances described would have nothing to gain and nothing to fear. Prospects of permanent appointment or reappointment as an acting judge would be irrelevant. As a serving judge of another court, the appointee would return to the duties of that office when the task in hand had been performed.
95. Once that possibility (of validly appointing a serving judge of another Supreme Court as an acting judge) is admitted, the absolute proposition advanced by those alleging invalidity is denied.
96. The appointment of a retired judge of the Federal Court or an interstate Supreme Court in the particular circumstances just described could likewise have no adverse effect on the institutional integrity of the court. It could have no adverse effect because, again, the appointment being made in the unusual circumstances of all (or most) permanent judges being embarrassed, and limited to the hearing of one case, the person appointed would have nothing to gain and nothing to fear from the performance of the task confided in that person. Because the circumstances of appointment are unusual and the appointment is limited, there is no immediate prospect of reappointment.
97. As noted earlier, however, the appointment of a legal practitioner to act as a judge for a temporary period, in the expectation that that person would, at the end of appointment, return to active practice, may well present more substantial issues. The difficulty of those issues would be intensified if it were to appear that the use of such persons as acting judges were to become so frequent and pervasive that, as a matter of substance, the court as an institution could no longer be said to be composed of full-time judges having security of tenure until a fixed retirement age. As was said in Bradley [78] , there may come a point where the series of acting rather than full appointments is so extensive as to distort the character of the court.
98. It is necessary to explain how and why that may be so, if only for the purpose of drawing contrasts with the examples, earlier given, of the appointment of serving or retired judges as acting judges. The practitioner appointed to act as a judge for a temporary period, in the expectation that that person will return to active practice, may be portrayed as standing to gain the advantage of full-time appointment or to suffer detriment if, in the course of performing the duties of office, adverse decisions were made in matters in which those to whom that person would look for work on resumption of practice were engaged. The first of these possibilities is frankly acknowledged when it is said that appointment as an acting judge may allow the assessment of the appointee's "suitability" or "aptitude" for judicial work. And the second set of considerations is no less real if it is said that appointment as an acting judge may allow the appointee to decide if he or she enjoys judicial work.
99. That is not to say that the importance of these considerations may not be reduced if account is taken of the reasons that lead to the making of an acting appointment. The greater the necessity for the appointment, the less influential on perceptions of impartiality and integrity may be the considerations of the possible frailties of the person or persons appointed. That is, the institutional integrity of the court is less likely to be damaged by response to pressing necessity than it is by the change of character that may be worked by a succession of short-term appointments for no apparent reason other than avoiding the costs associated with making full-time appointments or, perhaps worse, a desire to assess the "suitability" of a range of possible appointees.
100. As is implicit in what is just said, "pressing necessity" refers to some necessity arising from the work of the court, not simply a desire, by the Executive, to avoid the costs of making full-time appointments. In particular, the proposition that a sudden increase in the work of a court may turn out to be "of a temporary nature only" [79] will seldom amount to such a pressing necessity. It is an assertion which serves only to obscure first, the fact that "[j]udicial power is exercised as an element of the government of society" [80] and secondly, and no less importantly, that "the third great department of government" [81] cannot discharge its functions without adequate financial support from the other two departments.
101. Whether, or when, the institutional integrity of the court is affected depends, then, upon consideration of much more than the bare question: how many acting judges have been appointed? Regard must be paid to who has been appointed, for how long, to do what, and, no less importantly, why it has been thought necessary to make the acting appointments that have been made. Those alleging invalidity in the present matter did not seek to make a case founded in any examination of the circumstances that led either to the successive appointments of Foster AJ, or any of the other appointments made at or about the time of his appointments. To the extent that those alleging invalidity sought to make any case separate from and additional to their basic proposition that s 37 is wholly invalid, they did no more than point to the numbers of appointees. For the reasons that have been given, s 37 is not to be read down by reference to some numerical criterion.
102. Section 37 of the Supreme Court Act is not invalid. It is not demonstrated that s 37 was not validly engaged to appoint Foster AJ as an acting judge of the Supreme Court of New South Wales. The first issue tendered for decision in these matters and in the application for special leave should be resolved against those alleging invalidity.
Corporations Act 2001 (Cth) - Ch 10
103. The second issue that arises concerns the construction and validity of the transitional provisions of Ch 10 of the Corporations Act 2001 (Cth). That is the second question reserved for the consideration of the Full Court in that part of the matter pending in the Supreme Court of New South Wales removed into this Court. It is the second question that arises in consequence of the demurrers to the statement of claim in the proceedings instituted by Mr Forge and others in the original jurisdiction of the Court. It is the second issue that arises in the application for special leave to appeal.
104. As noted at the outset of these reasons, ASIC brought proceedings in the Supreme Court of New South Wales against Mr Forge and others alleging contravention of certain civil penalty provisions of corporations legislation. The conduct alleged to constitute the relevant contraventions occurred in April 1998. At that time the applicable corporations legislation was the Corporations Law of New South Wales. That law, the text of which was set out in s 82 of the Corporations Act 1989 (Cth), as in force for the time being, was applied in New South Wales by s 7 of the Corporations (New South Wales) Act 1990 (NSW).
105. In April 1998, s 232 of the Corporations Law of New South Wales provided for the duties and liabilities of officers of corporations. Some of the provisions of s 232 were identified as civil penalty provisions, a term defined then by s 1317DA of the Corporations Law, with the effect that the then provisions of Pt 9.4B of the Law (ss 1317DA to 1317JC) provided for the civil and criminal consequences of contravening any of them or of being involved in the contravention of any of them [82] . Section 1317EA empowered the court (in this case, the Supreme Court of New South Wales) to make civil penalty orders if satisfied that the person had contravened a civil penalty provision.
106. In April 1998, s 243ZE of the Corporations Law of New South Wales made provisions for the consequences of a public company, or a "child entity" [83] of a public company, giving a financial benefit to a related party of that public company. Section 243ZE(5) provided that certain provisions of the section were civil penalty provisions, as defined by s 1317DA, so that Pt 9.4B of the Corporations Law provided for civil and criminal consequences of contravening or of being involved in the contravention of either of them.
107. On 13 March 2000, the Corporate Law Economic Reform Program Act 1999 (Cth) (usually referred to as "CLERP") came into force. CLERP amended the Corporations Act 1989 (Cth) and, by operation of s 7 of the Corporations (New South Wales) Act 1990 (NSW), the amendments made to the Corporations Act 1989 (Cth) operated as amendments of the Corporations Law of New South Wales. The changes made by CLERP included changes to the provisions governing the civil and criminal consequences of contravening civil penalty provisions but also included new provisions about the duties of directors and other officers, and about related party transactions. The old provisions concerning the duties of directors and other officers, concerning related party transactions and regulating the civil and criminal consequences of contravening civil penalty provisions were repealed.
108. CLERP inserted s 1473 into the law set out in s 82 of the Corporations Act 1989 (Cth), and thus, effectively, into the Corporations Law of New South Wales. Section 1473 provided:
"(1) Part 9.4B of the old Law continues to apply in relation to:
- (a)
- a contravention of a civil penalty provision listed in section 1317DA of the old Law; or
- (b)
- an offence committed against one of those civil penalty provisions;
despite its repeal.
(2) Part 9.4B of the new Law applies in relation to a contravention of a civil penalty provision listed in section 1317E of the new law."
109. On 26 April 2001, ASIC commenced proceedings against Mr Forge and others in the Supreme Court of New South Wales alleging contraventions of ss 232 and 243ZE of the Corporations Law of New South Wales as that Law was in force in April 1998. As is apparent from what has been said earlier, these proceedings relied upon s 1473 of the Corporations Law operating upon what by then were the repealed sections of the Corporations Law regulating civil penalty proceedings in respect of those contraventions. As noted earlier, the State Corporations Law picked up and applied the Corporations Act 1989 (Cth) as it stood from time to time. The relevant federal Act, CLERP, on its true construction in the light of s 8 of the Acts Interpretation Act 1901 (Cth) did not, by repealing the earlier provisions, affect the continued operation of the provisions so repealed in respect of either the contraventions, or the legal proceedings brought for contravention.
110. The next legislative event of present significance was the enactment of the Corporations (Commonwealth Powers) Act 2001 (NSW) by which certain matters relating to corporations and financial products and services were referred to the Parliament of the Commonwealth for the purposes of s 51(xxxvii) of the Constitution. The matters referred were [84] the matters to which "the referred provisions" (being the tabled text of the Corporations Bill 2001 and the Australian Securities and Investments Commission Bill 2001) related, but only to the extent of the making of laws with respect to those matters by including the referred provisions in Acts enacted in the terms, or substantially in the terms, of that identified text. In consequence of that reference, and equivalent references made by other States, the Corporations Act 2001 (Cth) was enacted and came into force on 15 July 2001.
111. The central contention of Mr Forge and others was that although the necessary legislative chain permitting the institution of proceedings alleging contravention remained intact until 14 July 2001, the coming into force of the Corporations Act 2001 (Cth) broke that chain. The consequence, so they asserted, was that there was no matter before the Supreme Court of New South Wales.
112. To examine whether that is so, it is necessary to understand the position as it stood immediately before the coming into force of the Corporations Act 2001 (Cth). At that time, the rights and liabilities of the parties were governed relevantly by s 1317EA of the Corporations Law of New South Wales (repealed but continued in force by s 1473 of the Corporations Law of New South Wales) operating upon ss 232 and 243ZE of that Law which, despite their repeal, were still validly the subject of proceedings founded upon their application at the time of commission of the relevant conduct. The proceedings which had been instituted in the Supreme Court of New South Wales by ASIC were proceedings in federal jurisdiction. The Commonwealth or a person suing on behalf of the Commonwealth (ASIC) was a party. The jurisdiction was that conferred under s 77(iii) of the Constitution by s 39(2) of the Judiciary Act read with s 42(1) of the Corporations (New South Wales) Act 1990 (NSW) (which conferred jurisdiction on the Supreme Court in civil matters arising under the Corporations Law). The power given by s 1317EA of the Corporations Law of New South Wales to grant remedies was picked up and applied in federal jurisdiction by s 79 of the Judiciary Act [85] .
113. Section 1401 of the Corporations Act 2001 (Cth) was evidently intended to deal with questions of transition from the old co-operative scheme laws to the new Commonwealth corporations legislation. Its provisions, though elaborate, must be set out in full.
"(1) This section applies in relation to a right or liability (the pre - commencement right or liability ), whether civil or criminal, that:
- (a)
- was acquired, accrued or incurred under a provision of the old corporations legislation of a State or Territory in this jurisdiction that was no longer in force immediately before the commencement; and
- (b)
- was in existence immediately before the commencement.
However, this section does not apply to a right or liability under an order made by a court before the commencement.
(2) For the purposes of subsections (3) and (4), the new corporations legislation is taken to include:
- (a)
- the provision of the old corporations legislation (with such modifications (if any) as are necessary) under which the pre-commencement right or liability was acquired, accrued or incurred; and
- (b)
- the other provisions of the old corporations legislation (with such modifications (if any) as are necessary) that applied in relation to the pre-commencement right or liability.
(3) On the commencement, the person acquires, accrues or incurs a right or liability (the substituted right or liability ), equivalent to the pre-commencement right or liability, under the provision taken to be included in the new corporations legislation by paragraph (2)(a) (as if that provision applied to the conduct or circumstances that gave rise to the pre-commencement right or liability).
Note: If a time limit applied in relation to the pre-commencement right or liability under the old corporations legislation, that same time limit (calculated from the same starting point) will apply under the new corporations legislation to the substituted right or liability--see subsection 1402(3).
(4) A procedure, proceeding or remedy in respect of the substituted right or liability may be instituted after the commencement under the provisions taken to be included in the new corporations legislation by subsection (2) (as if those provisions applied to the conduct or circumstances that gave rise to the pre-commencement right or liability).
Note: For pre-commencement proceedings in respect of substituted rights and liabilities, see sections 1383 and 1384."
114. ASIC rightly submitted that the effect of s 1401 of the Corporations Act 2001 (Cth) was, by sub-s (1), to look at, rather than to pick up, the rights and liabilities, inchoate and contingent, as they existed on 14 July 2001, and to label them "pre-commencement rights or liabilities". By sub-s (2), s 1401 then incorporated into the new Corporations Act 2001 (Cth), for the limited purposes of sub-s (3), the text of the provisions of the State law which had given rise to the pre-existing rights and liabilities (in this case ss 1317EA and 232 or 243ZE as the case required). Sub-section (3) then created, under the provisions thus incorporated into the new Corporations Act 2001 (Cth), new and substituted rights and liabilities equivalent to the old "as if that provision applied to the conduct or circumstances that gave rise to the pre-commencement right or liability". Section 1401(3) thus provided for present and future consequences as to past acts [86] .
115. The consequence of this was that on and from 15 July 2001 jurisdiction was conferred on the Supreme Court (again under s 77(iii) of the Constitution) to determine and enforce the newly created rights and liabilities. The matter founding that jurisdiction was, as counsel for ASIC rightly submitted, properly to be identified as the justiciable controversy arising from the disputed contention of ASIC of an entitlement to orders under the substituted, carbon-copy, s 1317EA, for breach of the substituted, carbon-copy, s 232 or s 243ZE, as those sections were incorporated under s 1401(2) and as they are to be applied according to the assumption required by s 1401(3) when it speaks of the relevant provision which is taken to be included in the new corporations legislation applying " as if that provision applied to the conduct or circumstances that gave rise to the pre-commencement right or liability". That is the matter that was before the Supreme Court of New South Wales.
Orders
116. For these reasons, the questions reserved should be answered:
- 1.
- 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.
- 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.
117. In the proceeding commenced by writ in this Court, the first and second defendants' demurrers should be allowed and judgment entered for the defendants.
118. An appeal against the orders of Foster AJ was allowed in part by the New South Wales Court of Appeal. The Court of Appeal remitted to the Equity Division issues relating to penalty. That cause pending in the Equity Division was, in part, removed into this Court and the questions answered above were reserved by a Justice to the Full Court.
119. The special leave application against part of the orders of the Court of Appeal was filed out of time. The necessary extension of time should be granted but the application for special leave should be dismissed.
120. In each of the matters, and in the application for special leave to appeal to this Court, there should be an order that William Arthur Forge, Jozsef Endresz, Dawn May Endresz, Allan Paul Endresz and Bisoya Pty Limited pay the costs of the opposing parties, other than those Attorneys-General who intervened in the proceedings in this Court.