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)(Judgment by: Kirby J)
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
KirbyHayne
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
Judgment by:
Kirby J
121. KIRBY J. In Ebner v Official Trustee in Bankruptcy [87] , in words endorsed by six members of this Court in North Australian Aboriginal Legal Aid Service Inc v Bradley [88] , I observed:
"[I]n Australia, the ultimate foundation for the judicial requirements of independence and impartiality rests on the requirements of, and implications derived from, Ch III of the Constitution."
122. The central issue in these proceedings concerns the compatibility with Ch III of the Constitution of provisions of State law for the appointment of acting judges. In recent times, such judges have been appointed, at least in one State, in significant numbers, including to the Supreme Court of the State which enjoys a special status and role in the federal Constitution [89] . The question for decision is whether State laws, to the extent that they purport to authorise this development, and to allow for commissions to acting judges who in aggregate constitute a significant augmentation of such courts, are valid when measured against the federal constitutional standard, including as it was explained in Kable v Director of Public Prosecutions (NSW ) [90] .
123. The issue now arising is one that has been anticipated in a number of earlier decisions of this Court [91] . It has been the subject of controversy in judicial [92] , political [93] and professional [94] circles. It is an issue of the kind that tests this Court on a matter of basic constitutional principle. Our predecessors were not found wanting when similarly tested [95] .
124. In my opinion, the number and type of acting appointments made under the impugned provisions of s 37 of the Supreme Court Act 1970 (NSW) ("the Supreme Court Act") are such as to amount to an impermissible attempt to alter the character of the Supreme Court. They attempt to work a change in a fundamental respect forbidden by the federal Constitution. What was intended as a statutory provision for occasional and exceptional additions to judicial numbers, in special circumstances, has become a means for an institutional alteration that is incompatible with the role of the State courts, particularly the Supreme Court. It has made the courts beholden to the Executive for regular short-term reappointments of core numbers of the judiciary. This is offensive to basic constitutional principle. In Republican Party of Minnesota v White , Stevens J, in the Supreme Court of the United States, explained succinctly the importance of ensuring that judges are removed from any necessity, or inclination, to court the good opinion of the government of the day [96] :
"There is a critical difference between the work of the judge and the work of other public officials. In a democracy, issues of policy are properly decided by majority vote; it is the business of legislators and executives to be popular. But in litigation, issues of law or fact should not be determined by popular vote; it is the business of judges to be indifferent to unpopularity."
125. The time has come for this Court to draw a line and to forbid the practice that has emerged in New South Wales, for it is inimical to true judicial independence and impartiality. When viewed in context, the acting judicial commission in question in these proceedings was not an ad hoc , special one for particular purposes. When the line is crossed, this Court should say so. It should not postpone the performance of its role as guardian of the Constitution. The challenge to the validity of the legislation should be upheld.
The facts and the legislation
126. The proceedings : The three proceedings now before this Court are described in other reasons [97] . It is unnecessary for me to repeat that description. However, for the approach that I take, two additional issues must be identified [98] .
127. History of acting judges : There is no dispute that, from early colonial times, legislation throughout Australia authorised the appointment of acting judges, including to the Supreme Courts [99] . The Charter of Justice [100] , which applied in New South Wales, envisaged the appointment of an acting judge instead of another full-time judge to replace an absent judge, until that judge returned, or until a successor had been appointed. When the District Court of New South Wales was established in 1858, its statute provided for judges of that Court to act as judges of the Supreme Court under special commissions for the trial of issues, civil or criminal, at remote places [101] .
128. The Judicial Offices Act 1892 (NSW) repealed the 1858 provisions. It replaced them with one which extended the power to appoint a District Court judge as an acting judge of the Supreme Court for a time not exceeding six months [102] . In his Second Reading Speech in support of the Bill that became the 1892 Act, the Attorney-General, Mr Edmund Barton, explained that this provision was intended to be used only for temporary purposes to clear a block in judicial business where cases had been a long time in arrears [103] .
129. The Supreme Court and Circuit Courts Act 1900 (NSW) replaced the Judicial Offices Act . At the time of Federation, s 13 of the 1900 Act provided a power to appoint acting judges to the Supreme Court [104] . However, its terms made it clear that any such appointment was to be treated as special [105] :
"(1) The Governor may issue a special commission to any Judge of the District Court, or to any barrister or solicitor of not less than seven years' standing, appointing him -
- ...
- (b)
- to sit and act as a judge of the Court at Sydney in any one or more jurisdictions of the Court to be specified in such commission, and for a time not exceeding in any case six months to be specified in like manner." (emphasis added)
130. It is true that, pursuant to the 1900 Act, Mr Barton and other persons with the requisite qualifications were appointed acting judges of the Supreme Court of New South Wales. However, the record of such appointments, contained in the frontispiece to the authorised reports of that Court, confirms that such appointments were invariably of three types:
- (1)
- A short-term elevation of a District Court judge for particular purposes;
- (2)
- A short-term appointment of a qualified senior barrister, with a view to his early confirmation in office as a permanent judge of the Supreme Court when a vacancy arose; or
- (3)
- (Rarely) the appointment of some other qualified person for a short period for special purposes, not followed by permanent appointment [106] .
131. The appointment of a large and steady number of acting judges under the 1900 Act would have been inconsistent both with its explicit reference to the "special" character of the acting judge's commission [107] and with the actual practice observed in New South Wales back to the earliest colonial times.
132. The 1989 change : It is not correct to suggest that the nineteenth century practice simply continued. Section 37 of the Supreme Court Act, the meaning and validity of which are in issue in these proceedings, was enacted in 1970. The section is set out in other reasons [108] . There is no need for me to repeat it. Given that s 22 of the Supreme Court Act makes it clear that the Supreme Court of New South Wales, as "formerly established", is continued, it seems hardly likely that the Parliament of New South Wales intended, by the enactment of s 37, to introduce after 1970 a regime for acting judges that was significantly different from that which had lasted in that Court for so very long. Nothing explicit was said to suggest otherwise, either in s 37 itself or in the Second Reading Speech that accompanied the introduction of the Bill that became the Supreme Court Act.
133. In fact, the practice that had existed in New South Wales for the better part of the first century of Federation continued, substantially unaltered, until 1989. The memoranda in the frontispiece of the authorised reports of the Supreme Court of New South Wales over the twentieth century confirm the recollection that I hold from fifty years of observing, practising before and participating judicially in, that Court.
134. I intrude personal recollection in the same way as Lord Hope of Craighead did in his reasons in Kearney v HM Advocate [109] . In deciding a challenge to the appointment of a barrister as a temporary judge of the Court of Session in that case, his Lordship drew on his experience as Lord President in Scotland. In matters concerning the composition, practices and traditions of the judiciary, it is inevitable that serving judges will draw on their own memories. However, it is as well to check these recollections against recorded history, lest inclination contaminate the facts.
135. Table 1 sets out the number of appointments as acting judges of the Supreme Court of New South Wales from 1901 to 2004 as recorded in that Court's authorised reports.
TABLE 1
ACTING JUDICIAL APPOINTMENTS, NEW SOUTH WALES 1901-2004 [110]
1901 | 1902 | 1903 | 1904 | 1905 | 1906 |
0 | 1 (1) [1] | 0 | 0 | 0 | 1 (1) [1] |
1907 | 1908 | 1909 | 1910 | 1911 | 1912 |
2 (2) [1] | 0 | 0 | 0 | 2 (2) [2] | 0 |
1913 | 1914 | 1915 | 1916 | 1917 | 1918 |
0 | 0 | 0 | 0 | 0 | 0 |
1919 | 1920 | 1921 | 1922 | 1923 | 1924 |
2 (2) [1] | 3 (3) [2] | 1 (1) [1] | 1 (1) | 1 (1) | 3 (2) |
1925 | 1926 | 1927 | 1928 | 1929 | 1930 |
2 (1) | 2 (1) [1] | 0 | 0 | 6 (3) [2] | 0 |
1931 | 1932 | 1933 | 1934 | 1935 | 1936 |
0 | 2 (1) [1] | 0 | 3 (2) [1] | 0 | 6 (3) [1] |
1937 | 1938 | 1939 | 1940 | 1941 | 1942 |
5 (4) [3] | 6 (3) [2] | 11 (5) [1] | 0 | 1 (1) [1] | 0 |
1943 | 1944 | 1945 | 1946 | 1947 | 1948 |
0 | 2 (1) [1] | 1 (1) [1] | 1 (1) [1] | 0 | 0 |
1949 | 1950 | 1951 | 1952 | 1953 | 1954 |
2 (1) [1] | 0 | 1 (1) [1] | 6 (6) [2] | 2 (2) [2] | 0 |
1955 | 1956 | 1957 | 1958 | 1959 | 1960 |
0 | 0 | 0 | 0 | 0 | 0 |
1961 | 1962 | 1963 | 1964 | 1965 | 1966 |
0 | 2 (2) [2] | 0 | 0 | 0 | 9 (6) [4] |
1967 | 1968 | 1969 | 1970 | 1971 | 1972 |
5 (5) [3] | 1 (1) [1] | 0 | 0 | 0 | 0 |
1973 | 1974 | 1975 | 1976 | 1977 | 1978 |
0 | 0 | 0 | 0 | 0 | 0 |
1979 | 1980 | 1981 | 1982 | 1983 | 1984 |
0 | 0 | 0 | 0 | 0 | 0 |
1985 | 1986 | 1987 | 1988 | 1989 | 1990 |
0 | 0 | 0 | 1 (1)
12 (12) |
13 (12) [2]
18 (18) |
13 (11) [2]
18 (18) |
1991 | 1992 | 1993 | 1994 | 1995 | 1996 |
7 (7) [2]
13 (13) |
3 (3) | 1 (1)
3 (3) |
7 (7) [1]
3 (3) |
3 (3) [1]
4 (4) |
7 (7) [2]
36 (36) |
1997 | 1998 | 1999 | 2000 | 2001 | 2002 |
10 (10) [1]
42 (42) |
7 (7) [1]
70 (58) |
8 (8)
23 (23) |
12 (12)
29 (28) |
21 (19) [1]
35 (29) |
19 (19) [1]
30 (29) |
2003 | 2004 | ||||
11 (11)
34 (31) |
15 (15)
44 (38) |
136. A significant change of practice in the appointment of acting judges to the Supreme Court occurred in 1989, in which year no fewer than 12 qualified persons were commissioned as acting judges. This is apparent from Table 1. The practice of making acting appointments in this way continued thereafter. Indeed, in the case of the District Court of New South Wales, appointments of acting judges from the practising legal profession for relatively short intervals became both very common and very numerous, a fact that casts light on the constitutional character of the concurrent acting appointments to the Supreme Court.
137. Two graphs (Figures 1 and 2) show, even more clearly, the change in the appointment of acting judges to the Supreme Court of New South Wales. Figure 1 illustrates the aggregate number of acting judge commissions over the course of the twentieth century. Figure 2 illustrates the duration of such commissions.
FIGURE 1
NUMBERS OF ACTING JUDGES AND ACTING JUDGES OF APPEAL
SUPREME COURT OF NEW SOUTH WALES, 1901-2004 [111]
FIGURE 2
DURATION OF COMMISSIONS OF ACTING JUDGES AND ACTING JUDGES OF APPEAL
SUPREME COURT OF NEW SOUTH WALES, 1901-2004 [112]
138. Once this institutional feature of the courts of New South Wales, specifically the Supreme Court, changed and persisted for a time, a danger was presented that the change would become permanent. What had begun, and long persisted, as an exception for a special and limited purpose ( ad hoc requirements of particular "delay reduction programmes" [113] ), became entrenched when its advantages to the Executive Government became apparent.
139. As Table 1 and Figure 1 demonstrate, the number of acting judges in the 1990s waxed and waned somewhat. However, by 2000, the numbers settled down to fairly stable figures. Acting judges then came to constitute a settled proportion of the complement of the Supreme Court. A further table, Table 2, produced by the plaintiffs in these proceedings, reveals the position that has now been reached. It describes the pattern of acting appointments to the Supreme Court of New South Wales between January 2000 and January 2005.
TABLE 2
NUMBERS OF ACTING JUDGES AND ACTING JUDGES OF APPEAL
SUPREME COURT OF NEW SOUTH WALES, 2000-2005 [114]
Year | Judges of Appeal (Excluding President) | Judges (Excluding Chief Justice, President and Judges of Appeal) | Acting Judges | Acting Judges of Appeal | Total Acting Judges | Total Judges, Judges of Appeal, Acting Judges, Acting Judges of Appeal (Including Chief Justice and President) |
As at January 2000 | 9 | 33 | 3 | 4 | 7 | 51 |
As at January 2001 | 10 | 32 | 1 | 7 | 8 | 52 |
As at January 2002 | 9 | 33 | 8 | 5 | 13 | 57 |
As at January 2003 | 10 | 33 | 7 | 4 | 11 | 56 |
As at January 2004 | 10 | 35 | 5 | 4 | 9 | 56 |
As at January 2005 | 10 | 34 | 4 | 8 | 12 | 58 |
140. Whereas all of the persons appointed acting judges or acting judges of appeal of the Supreme Court in 2004-2005 were former judges of that Court (or in two cases, former judges of the Land and Environment Court of New South Wales, in one case of the Federal Court and in three cases of the District Court), the position with acting appointments to the District Court of New South Wales in the same period was different. In 2004, no fewer than 38 persons were appointed acting judges of the District Court. Between 1 July 2004 and 30 June 2005, 20 such appointees were former judges of the District Court or of other superior courts. The rest had a background at the Bar, as solicitors or, in two cases, as legal academics.
141. These figures demonstrate a systematic and uninterrupted trend since 1989 to alter the composition of New South Wales courts by appointing acting judges in substantial numbers. Anyone who thinks otherwise must have forgotten the constitution of such State courts with which they grew up. The foregoing tables and figures provide an empirical antidote to imperfect memories.
142. There comes a time when quantitative change turns into a qualitative change; when special need becomes a settled practice; when a number of individual commissions becomes an institutional restructuring. This is what has happened in New South Wales courts, specifically in the Supreme Court. It has happened without an alteration of the relevant legislation to afford the specific endorsement by the State Parliament of such restructuring. It has occurred by the use of statutory provisions, expressed in general terms, for appointing acting judges, although such provisions were obviously intended, and initially only used, for ad hoc and special needs. In the case of the Supreme Court, the cohort of acting judges has now effectively become part of the Court's institutional arrangements. This is even truer of the District Court. It is such arrangements that the plaintiffs challenge.
143. Evidence of a changed practice was relied on by the plaintiffs to make good their constitutional submission. However, the plaintiffs did not rely on numbers alone. They emphasised the pattern and continuity of the trend evident in the numbers as well as the variety and identity of the named persons appointed to acting judicial office in the State. One such pattern may be seen in the renewal of the commissions of certain acting judges and acting judges of appeal. Table 3 illustrates this point. Instead of appointing permanent judges to fill obvious and substantial institutional needs, these were filled by repeated renewals of acting judges, extended in successive years, on each occasion, for the maximum time allowed for acting appointments.
TABLE 3
RENEWAL OF ACTING COMMISSIONS
SUPREME COURT OF NEW SOUTH WALES, 1901-2004 [115]
Acting Judge or Acting Judge of Appeal | Number of commissions received | Acting Judge or Acting Judge of Appeal | Number of commissions received |
Badgery-Parker, Jeremy | 3 | Lee, Jack Austell | 3 |
Barr, Graham Russell | 2 | Leslie, Arthur James | 2 |
Barton, Edmund Alfred | 2 | Loveday, Ray Francis | 2 |
Bell, Hubert Henry | 2 | Lusher, Edwin Augustus | 2 |
Brownie, John Edward Horace | 7 | Markell, Horace Francis | 2 |
Bruce, Vincent | 2 | Mathews, Jane Hamilton | 4 |
Burchett, James Charles Sholto | 4 | Maughan, David | 3 |
Callaway, Calvin Rochester | 3 | Maxwell, Alan Victor | 2 |
Campbell, Michael William | 2 | McClellan, Peter David | 2 |
Capelin, Peter R | 2 | McInerney, Peter Aloysius | 2 |
Carruthers, Kenneth John | 5 | Meares, Charles Leycester Devenish | 2 |
Clancy, John Sydney James | 3 | Miles, Jeffrey Allan | 2 |
Clarke, Matthew John Robert | 2 | Murray, Brian Francis | 3 |
Cooper, Harvey Leslie | 2 | Needham, George Denys | 3 |
Cripps, Jerrold Sydney | 3 | Newman, Peter James | 4 |
Davidson, Colin George Watt | 2 | Owen, William Francis Langer | 2 |
Davidson, Thomas Swanson | 4 | Pearlman, Mahla Liane | 2 |
Davies, John Daryl | 5 | Ralston, Alexander Gerard | 5 |
Donovan, Brian Harrie Kevin | 3 | Rolfe, James Morton Neville | 3 |
Edwards, Henry George | 2 | Roper, Ernest David | 3 |
Fitzgerald, Gerald Edward | 3 | Sheppard, Ian Fitzhardinge | 2 |
Foster, Michael Leader | 5 | Slattery, John Patrick | 4 |
Holland, Kevin James | 3 | Smart, Rex Foster | 6 |
Hope, Robert Marsden | 3 | Taylor, Kenneth Victor | 2 |
Ipp, David Andrew | 2 | Webb, Paul | 2 |
Ireland, Morris David | 4 | Whitlam, Anthony Philip | 2 |
Knight, William Harwood | 2 | Woodward, Philip Morgan | 2 |
144. Between 1901 and 1988, 69 acting commissions in the Supreme Court were issued. Fourteen of these commissions (or 20.3%) were given to individuals who had already held an acting commission. Between 1989 and 2004, 158 acting commissions were issued. However, in contrast to the practice of commissions which had previously prevailed, 83 (or 52.5%) of these commissions were given to recipients who had already held an acting commission. These figures reveal the institutional significance of renewed acting commissions in recent years.
145. Governmental submissions : None of the parties seeking to defend the validity of the legislation [116] raised any formal or evidentiary objection to this Court's receiving and acting on the matters of public record set out above. They joined issue on the facts as revealed in Table 2. Table 1 is no more than a retrospective to permit the figures in Table 2 to be understood against their historical background. Figures 1 and 2 and Table 3 constitute no more than a detailed breakdown of the same publicly available material.
146. However, the defendants were critical of the quality of this evidence. Thus, the Commonwealth pointed out that raw figures concerning the number of acting judges in New South Wales afforded no information, as such, on the backgrounds of such judges; the actual days of judicial work performed during individual appointments; and the nature of the judicial activity assigned during those days. The Commonwealth submitted that, in any case, expressed in such raw terms, the number of part-time Supreme Court judges as at January 2002 (comprising 22.8% of all judges of the Supreme Court) represented the "high water mark" when compared with the preceding years. Thus, according to the Commonwealth, the emerging position in the Supreme Court was as follows:
- •
- As at January 2000 there were eight acting judges out of a total of 52 (both permanent and acting). Thus, 13.7% of judges of the Court were acting judges;
- •
- As at January 2001 there were seven acting judges out of a total of 51 (both permanent and acting). Thus, 15.4% of judges were acting judges;
- •
- As at January 2003 there were 12 acting judges out of a total of 57 judges (both permanent and acting). Thus, 21.1% of judges were acting judges; and
- •
- As at January 2004 there were nine acting judges out of a total of 56 judges (both permanent and acting). Thus, 16.1% of judges were acting judges.
147. The acting judges of the Supreme Court could not be viewed as performing 22.8% or even 13.7% of the work of the Supreme Court during the respective years of the high and low figures. Obviously, the proportion of the work of the Supreme Court performed would depend on the days on which the acting judges were rostered for duty. The defendants sought to turn this paucity of information to their advantage. Thus, the Commonwealth argued that acting judges of the Supreme Court would not necessarily sit continuously but only as the need arose. They would thus perform a smaller (although unidentified) part of the business of the Supreme Court. By inference, on this argument, any defect introduced by the participation of non-permanent judges was to be treated as diminished because such participation affects only a small proportion of cases and litigants.
148. In the same vein, ASIC presented an analysis of the judicial reasons reported in the volumes of the New South Wales Law Reports from which the plaintiffs have taken their recent statistics concerning the numbers of acting judges of the Supreme Court [117] . According to ASIC, the analysis revealed that:
"[I]n vol 48 there were 90 instances of judgments by permanent judges and only three instances of judgments by acting judges; in vol 50 there were 99 instances of judgments by permanent judges and six instances of judgments by acting judges; in vol 52: 73 permanent, 12 acting; in vol 55: 83 permanent and 13 acting; in vol 57: 91 permanent and 4 acting."
Whilst conceding that such figures did not disclose accurately the "proportion of work actually conducted by acting judges in the period 2000-2004", ASIC argued that "they do nevertheless suggest that amount is modest".
149. Modest infractions against the Constitution (if that they be) remain infractions. Moreover, the very "modesty" enlivens a different criticism concerning the recruitment of acting judges, at least at the level of appeals. This is that such judges may sometimes appear to participate in order to make up the numbers and not to be as fully engaged, fully supported and equally committed judicial officers, playing a fully active, entirely equal, and proportionate role in the work of the Court as their permanent colleagues. No conclusion could be reached on this suggestion without further evidence. However, the risk is undeniable. The perception of a problem is almost as serious as the suggested problem itself.
150. The State of New South Wales complained about the imperfections in the memoranda published in the authorised reports of the Supreme Court from which, substantially, the foregoing statistics and figures are derived. It is true that the materials are open to minor criticisms. However, they are clearly sufficient to illustrate accurately the overall trends and outcomes, which is what these proceedings are concerned with. Moreover, the State's criticisms cannot be given great weight when regard is had to its presumed capacity to secure access to its own more detailed records that would reveal perfectly the number, duration and variety of all of its acting judicial appointments since Federation. The failure of the State to produce competing evidence, to cast doubt on the patterns emerging from the foregoing tables and figures, suggests strongly that the published memoranda are adequate, accurate and representative. Given their sources, the contrary conclusion would be perverse.
151. However, the State also suggested, cautiously, that the foregoing tables and figures "could be misleading" and "of limited utility". That submission was advanced on the basis of the fact that some of the acting judges of the Supreme Court in recent years (eg in 2002) were permanent judges of other State courts or former judges who may not have sat continuously throughout the period of their appointment as acting judges. That submission does not affect the accuracy of the statistics or the value of the figures based on them as illustrations of the institutional augmentation of the Supreme Court by outside personnel in large numbers after 1989.
152. The State denied that a significant change of practice in the appointment of acting judges occurred in 1989. It produced tables and figures in an attempt to support that submission. However, if the period of the operation of the Supreme Court Act following its enactment in 1970 is adopted, being the operation of the law challenged in these proceedings, the graphical representation supplied by the State itself clearly denies the accuracy, and certainly the persuasiveness, of its submission.
FIGURE 3
NUMBER OF JUDGES OF THE SUPREME COURT OF NEW SOUTH WALES, 1970-2004 SHOWING ACTING JUDGES IN RELATION TO PERMANENT JUDGES [118]
153. The State (supported by the Commonwealth) also argued that the number of acting judges may not reflect the level of representation of acting judges on the Court over time. No doubt exact figures would disclose precisely the number of judge days served (permanent and acting) in each year since 1901. The State did not provide such materials although it was in the best position to do so and was given a full opportunity for that purpose. It is proper to assume that such information did not advance the State's argument.
154. The State and the Commonwealth submitted that a more accurate impression of the participation of acting judges in the Supreme Court would arise by comparing the number of acting judges in any given year to the number of permanent judges. Yet even if this approach were adopted, the graphical representation of the ratio of such judges in the Supreme Court remains telling, based on the information supplied by the State. It is contained in Figure 4. That figure confirms the significant proportional alteration that has occurred in the participation of acting judges of the Supreme Court after 1989. It is that alteration that is the subject of these proceedings.
FIGURE 4
PROPORTION OF ACTING JUDGES TO PERMANENT JUDGES OF THE SUPREME COURT OF NEW SOUTH WALES, 1901-2004 [119]
155. Other members of this Court may find the foregoing statistics and figures "meaningless" [120] . To the contrary, I regard them as demonstrating a clear trend that has the effect of altering the composition of a State Supreme Court. It is that trend that should enliven the concern, and response, of this Court. It should be stopped now before it becomes permanent and spreads, as departures from constitutional principle have a tendency to do.
156. The evidence : conclusions : The evidence relied on by the plaintiffs was qualified, limited and imperfect. Even when it is broken down a little more and the same sources are analysed more closely, the entire picture is not presented. Yet its major outlines were not successfully challenged by the defendants. The general trend revealed in the appointment of acting judges in the frontispiece pages to the authorised reports of the Supreme Court of New South Wales, over more than a century, is reinforced by professional recollection and the well-remembered institutional tradition. In respect of the last decade or so it is confirmed by information contained in the Annual Reviews of the Supreme Court of New South Wales published in that time [121] .
157. From the tables and figures set out in these reasons, this Court should draw a number of conclusions. Such conclusions are sufficient for the purposes of the proceedings. In my opinion, the conclusions available from the record and such other public material as is incontestable are:
- (1)
- From the first establishment of courts in New South Wales in colonial times a power existed for the appointment of acting judges to the Supreme Court;
- (2)
- Throughout the nineteenth and most of the twentieth centuries, such appointments were made in special circumstances, afforded on an ad hoc basis and issued in tiny numbers that never threatened to alter the institutional identity of the court concerned, specifically the Supreme Court;
- (3)
- This settled practice changed in 1989. The change then introduced has been continued ever since. It has gathered pace in the past six years;
- (4)
- Initially, in the early 1990s, appointees as acting judges of the Supreme Court included retired judges and judges of appeal, judges of other courts and qualified legal practitioners. This practice has changed further so that now only retired judges of the Supreme Court, Federal Court or of other courts are appointed acting judges or acting judges of appeal of the Supreme Court;
- (5)
- The foregoing alteration has, however, not extended to acting appointments to the District Court of New South Wales. A significant number of legal practitioners and some academic lawyers have been appointed as acting judges of that Court;
- (6)
- Acting appointments now represent a significant component of judicial appointments to the Supreme Court and, even more so, to the District Court; and
- (7)
- Whilst the number of such appointments has varied over the past twenty years, in the Supreme Court it has now settled down so as to constitute a steady and significant component. It represents an important and relatively stable institutional supplementation of the judicial personnel of the Supreme Court. It is even more so in the District Court. The development is new and appears to be semi-permanent. There appears to be little prospect of diminution or abolition of the practice.
158. The question for this Court is whether the foregoing conclusions are of constitutional significance. In my opinion, they are.
The issues
159. Four issues arise for decision:
- (1)
- The acting judge issue : Whether the provisions of s 37 of the Supreme Court Act, in so far as that section purports to authorise the issue of the commission as an acting judge of the Supreme Court of New South Wales to the Honourable M L Foster is invalid under the federal Constitution. Alternatively, was that commission invalid because it constituted an attempt to invoke the section (valid for other purposes) to support the appointment of a person as an acting judge in circumstances where doing so would impermissibly constitute part of a change to the character of the Supreme Court, rendering that Court, as a whole, a tribunal different from that envisaged, and required, by s 73 of the federal Constitution?
- (2)
- The transitional law issue : Whether the proceedings commenced by ASIC against the plaintiffs in the Supreme Court of New South Wales, tried before Foster AJ, constituted a "matter" arising under a law enacted by the Federal Parliament within the Constitution [122] . In particular, assuming the validity of Foster AJ's commission, did the transitional provisions of Ch 10 of the Corporations Act 2001 (Cth) ("the Corporations Act") validly operate to confer jurisdiction on the Supreme Court to apply, and enforce against the plaintiffs, the civil penalty provisions of that Act? Or was there a break in the legal chain by virtue of the enactment of the federal Act in 2001 such that, for any successful proceedings against the plaintiffs, ASIC could not rely on the transitional provisions but would be obliged to commence fresh proceedings brought entirely under the federal law?
- (3)
- The waiver or acquiescence issue : Given that the plaintiffs, both in the trial and on appeal in the Court of Appeal, raised no objection to the validity of the appointment of Foster AJ, as an acting judge of the Supreme Court of New South Wales, are they, by their conduct, to be treated as having waived any objection to (or as having acquiesced in) the participation by Foster AJ in the trial? In short, is it too late for the plaintiffs to advance their objection to the validity of Foster AJ's commission as an acting judge of the Supreme Court?
- (4)
- The de facto officers doctrine issue : In the event that the commission of Foster AJ is otherwise found to have been constitutionally invalid, are his acts, in purported fulfilment of his commission, valid by reason of the de facto officers doctrine?
Narrowing the issues
160. The transitional law issue : I can narrow the issues for decision in these proceedings immediately. For the reasons stated by Gummow, Hayne and Crennan JJ ("the joint reasons") [123] , I agree that, if otherwise valid, the trial conducted in the Supreme Court of New South Wales before Foster AJ of the proceedings commenced in that Court by ASIC against the plaintiffs constituted a matter arising under a law made by the Federal Parliament. The plaintiffs' arguments to the effect that the transitional provisions of Ch 10 of the Corporations Act did not apply, in terms, to the proceedings concerning them should be rejected. I have nothing to add to the joint reasons on this issue. However, as will appear, this conclusion does not ultimately avail ASIC.
161. The waiver or acquiescence issue : This issue was not, as such, advanced by ASIC, or indeed by any party or intervener. However, it is suggested by the reasons delivered in the recent Privy Council decision in Robertson v Higson [124] . It should therefore be noticed.
162. The decision in Robertson is one of a number in which their Lordships have had to consider complaints by litigants about the validity of orders pronounced in the High Court of Justiciary of Scotland. Three bills of suspension were appealed to the Privy Council, operating in its new role under the Scotland Act 1998 (UK). The bills arose out of the decision of the High Court in Starrs v Ruxton [125] .
163. Starrs was a case in which it was held that a court, presided over by a temporary sheriff under the then arrangements applicable to the Scottish judiciary, did not constitute an "independent and impartial tribunal" in terms of Art 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the European Convention") [126] . The decisions of the temporary sheriffs, and their orders, were therefore found to be invalid. The correctness of the decision in Starrs was not challenged before the Privy Council [127] . The Lord Advocate of Scotland accepted in Robertson that, in each of the cases argued, the Procurator Fiscal had no power to proceed with the prosecution of the appellant before a temporary sheriff.
164. However, it was argued in Robertson that the appellants had acquiesced in their trials before the temporary sheriffs and so could not secure relief. Despite extensive media coverage given to the decision in Starrs in November 1999, no challenge by way of bill of suspension was filed against the appellants' convictions in those cases until October 2001 or later.
165. In Robertson , the Privy Council unanimously upheld the argument of acquiescence and dismissed the appeals. The argument that the conviction and sentence constituted a "fundamental nullity", so as to render the suggested argument of waiver inapplicable, was rejected [128] . The discussion of that subject by Lord Carswell resonates with the recent consideration in this Court of somewhat similar questions [129] . Lord Carswell [130] relied on Lord Radcliffe's speech in the House of Lords in Smith v East Elloe Rural District Council [131] :
"An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
166. In the present proceedings, there was no earlier decision of this or any other court to hold, or suggest, that the orders made, and the judgment entered, by Foster AJ were constitutionally invalid. The objection raised by the plaintiffs is a fresh one. It presents a question of law, notably constitutional law. It does so in proceedings that are still alive before the Australian Judicature. There is no legal impediment to the point being raised, although belatedly, before this Court [132] . Once such a point is raised by a party (indeed, in my view, even if raised by the Court itself upon its perceiving a false assumption or concession relevant to jurisdiction which the parties should not have made [133] ), it is the duty of the Court to decide the issue. Certainly, it must do so if the issue is necessary to the disposition of the proceedings in accordance with law.
167. Waiver and acquiescence connote, at least to some degree, a knowing participation in a legal proceeding without raising an objection to it in a timely manner. There is no suggestion in the materials before this Court, still less any proof, that the plaintiffs were guilty of such disqualifying conduct here. None of the defendants suggested so. It is therefore unnecessary in these proceedings to consider whether, if a constitutional defect were established, a party might, procedurally, be incapable of relying on it because of waiver or acquiescence. This is not a case in which the plaintiffs' principal issue can be avoided, as was that in Robertson .
168. The de facto officers doctrine issue : In its written submissions, ASIC argued that, if Foster AJ's appointment as an acting judge in the Supreme Court were invalid, his decision in finding the plaintiffs guilty of offences under the Corporations Act, and his orders giving effect to that decision, were valid in accordance with the de facto officers doctrine.
169. My difficulties with this "doctrine" [134] were expressed in reasons in which I joined with Hope JA in G J Coles & Co Ltd v Retail Trade Industrial Tribunal [135] . In the federal constitutional setting I have repeated the expression of these difficulties in this Court in Re Governor, Goulburn Correctional Centre ; Ex parte Eastman [136] . In that case I observed that [137] :
"[A] distinction has been drawn between the validity of the acts de facto of a person invalidly appointed to a valid office and the acts of a person appointed to an office which itself has no validity".
170. Assuming this to be a proper distinction, the frontal attack by the plaintiffs on s 37 of the Supreme Court Act would mean that, on their argument, the office of "acting judge" of the Supreme Court, to which Foster AJ was purportedly appointed, did not exist. At least, it did not exist to fulfil the institutional arrangements which Foster AJ's appointment was intended to advance. On this basis (even assuming it to be otherwise available to answer an established defect under the Australian Constitution), the de facto officers doctrine would not rescue the validity of the orders made by an invalid appointee.
171. In Ruddock v Taylor [138] , I rejected an approach to the issue under consideration in that appeal which would have contradicted the Constitution or frustrated the making of orders upholding relevant constitutional provisions [139] . Similar considerations would inform my approach to any invocation of the de facto officers doctrine in these proceedings that sought to contradict a holding that Foster AJ's orders were invalid for reasons going to the heart of the requirements governing the Judicature under the Constitution.
172. However this may be, it is unnecessary finally to decide this point. During oral argument, ASIC made it clear that it did not ultimately press the de facto officers doctrine argument. Instead, ASIC indicated that it would only do so if this Court upheld the submissions made for South Australia (intervening), relevant to that subject.
173. In its arguments (intervening) in Eastman [140] , South Australia drew attention to what it suggested was the need for a de facto officers doctrine in order to avoid the "anarchy and chaos" that would otherwise follow a ruling that would be unsettling to the basic constitutional principle of the rule of law [141] . The invalidation of judgments and orders of acting judges of a State Supreme Court was argued to involve "anarchy and chaos" of this kind. It was for such a situation that the de facto officers doctrine was said to be necessary [142] .
174. In the United States of America, the Supreme Court has held that the de facto officers doctrine is inapplicable where the relevant appointment is invalid on "nonfrivolous constitutional grounds" [143] . This unedifying phrase is indication enough of the uncertain foundation of the doctrine in that country.
175. Even if some form of the doctrine exists in Australia, it would not appear to apply to the present case. First, on no account could the constitutional grounds urged by the plaintiffs be described as "frivolous". Secondly, success on the part of the plaintiffs would not lead to "anarchy and chaos". On the material placed before this Court, it would have little, if any, application to the judiciary in any other Australian State where acting judges have, until now, been comparatively rare. It would have no application to the federal judiciary, where acting judges do not exist. The constitutional flaw urged for the plaintiffs lay in the substantial and apparently stable number of acting judicial appointments that had altered the institutional character of the Supreme Court of New South Wales. Whether the argument would apply equally to the District Court of New South Wales (which is not expressly named in the Constitution) would remain for future debate. Thirdly, it is difficult to reconcile the doctrine with the fundamental role of the federal Constitution as the ultimate source of other laws. Constitutional rulings can occasionally be unsettling, at least for a period [144] . However, this is inherent in the arrangements of a nation that lives by the rule of law and accords a special status to the federal Constitution as its fundamental law.
176. Conclusion : confining the objection : Having regard to the tepid way in which ASIC ultimately pressed its argument on this point, I need say no more about it. None of the three identified subsidiary issues therefore controls the outcome of these proceedings. That outcome depends upon the principal argument for the plaintiffs. It rests on the plaintiffs' objection to the validity of the appointment of acting judges of the Supreme Court of New South Wales in the past decade, and specifically to the appointment of Foster AJ in ASIC's proceedings against them. I therefore turn to that objection.
The acting judge objection succeeds
177. Source of invalidation : As stated at the outset of these reasons, the answer to any question concerning the invalidation of a State law (or of a commission issued under that law) purporting to permit a person to be appointed as an acting judge of the Supreme Court for reasons of incompatibility with the federal Constitution, depends upon the constitutional text, or the implications necessarily derived from that text.
178. In the case of federal judges (including federal magistrates) provisions of the federal Constitution expressly govern the terms of their appointment, tenure, remuneration and removal [145] . Those provisions do not apply, according to their language, to State judges. From this feature of the Constitution, ASIC, and some of the States intervening, sought to derive much comfort - basically on an expressio unius argument. If the Constitution had intended to express requirements concerning the terms of appointments of State judges, they argued, it would have said so.
179. The dangers of deploying the expressio unius rule have been explained by this Court many times [146] . Those dangers are particularly evident in constitutional interpretation because of the brief terms in which the federal Constitution is expressed; the necessity of applying the Constitution to a myriad circumstances; the difficulty of securing formal amendment; and the changing circumstances to which the Constitution must continually apply. I explained these considerations in Re Wakim ; Ex parte McNally [147] . The absence of an express provision concerning the appointment of State judges by no means excludes implied requirements necessitated by considerations of history, context and also the function of the Constitution as the instrument of government for the entire Australian nation.
180. Much is written in the reasons of the other members of this Court to explain the arguments advanced on the acting judge issue in these proceedings; relevant past authority of the Court; and the considerations that need to be given weight in reaching a conclusion on the plaintiffs' submissions. It is unnecessary for me to repeat this background material. However, it is useful to collect a number of matters of common ground.
181. Common ground : Some circumstances evident in these proceedings are not disputed or should be taken as given:
- (1)
- The challenge is not personal to the Honourable M L Foster [148] . There was not the slightest suggestion that he had been biased against the plaintiffs or that he approached his duties as an acting judge in a way that was personally inappropriate. The issue for decision is a legal one. It is concerned with the nation's judicial institutions and the basic values of the Constitution, not personalities;
- (2)
- Nor was it suggested by anyone that any particular circumstances [149] had contaminated the trial of the proceedings involving the plaintiffs. To the extent that it was argued that an evidentiary base for the plaintiffs' complaint was missing, I disagree. Nor do I accept that the issue presented by the plaintiffs is in any way lacking in justiciability. No party contested the essential constitutional facts presented by the plaintiffs. On the contrary, the defendants joined issue upon them. They too are non-personal. They exist in detail in official records. It is the institutional change of recent years that the plaintiffs contest. It is not the individual honour and integrity of the persons who, in good faith, have participated in those arrangements;
- (3)
- The role of this Court is not, as such, to pronounce on the "general desirability" [150] of the appointment of acting judges. But neither is that issue one which belongs exclusively to a State Parliament, the Executive Government or officials. To the extent that a federal constitutional norm is invoked, the ultimate decision on that issue belongs to this Court. The Court cannot disclaim its responsibilities in resolving that issue;
- (4)
- Whilst the plaintiffs' challenge has potential significance for State courts other than the Supreme Court, it was ultimately focussed on the validity of appointments of acting judges in the Supreme Court of New South Wales. As is clear from the evidence and public records, different factual considerations arise in the case of the District Court of New South Wales because of the much greater number of acting appointments there and the large proportion of such appointments in recent years involving private legal practitioners [151] . Similarly, as the joint reasons demonstrate, different considerations arise in respect of the exercise of federal jurisdiction by State magistrates [152] . A determination of invalidity in the present case, in respect of an appointment as an acting judge of the Supreme Court, would not necessarily require the same outcome in respect of other courts, where the constitutional position is different [153] ;
- (5)
- The materials placed before this Court, and other publicly known and available information, indicate that the same oaths or affirmations are administered, before taking up duty, to acting judges as to permanent judges; that the jurisdiction in New South Wales of the complaints procedure of the Judicial Commission and of the Independent Commission Against Corruption applies equally to both [154] ; and that during appointment an acting judge enjoys immunity from removal or interference by the Executive Government in the same way as does a permanent judge. Nevertheless, acting judges do not enjoy the same security of tenure for an extended term (to the age of 70 years) that a permanent judge enjoys [155] . They hold office only during short terms, sometimes (but not always) successive. They are subject to renewal, even repeated renewal, at the behest of the Executive; and
- (6)
- Inherent in the references in the federal Constitution to State courts (and specifically to the "Supreme Court of any State") is a conception of what such courts will be and how they will be constituted. As a minimum, the constitutional description of such courts connotes basic requirements of independence and impartiality on the part of the judicial officers constituting them [156] . The federal Constitution necessarily implies, and all democratic nations accept, that an independent and impartial judiciary is essential to the maintenance of the rule of law [157] . The rule of law is a fundamental postulate of the Australian federal Constitution [158] .
182. Given that the Constitution suggests that provision for the composition of State courts will be made under State law, how can an implication be derived from the provisions in Ch III to invalidate the action of the Parliament of New South Wales in authorising the appointment of acting judges in the terms of s 37 of the Supreme Court Act, even in unusually large numbers? How is the commission granted to Foster AJ, purportedly pursuant to that provision, rendered invalid in respect of the proceedings affecting the plaintiffs? In particular, how can such invalidity arise given that the federal Constitution posits the existence of States, as separate governmental entities, with institutions of government (including courts) that are basically left to conform to their own several constitutional requirements [159] ? In investing the "courts of the States" with federal jurisdiction is not the Commonwealth ordinarily to be taken as accepting those courts as established under State law [160] ?
183. The answer to these questions requires attention to the six steps by which the plaintiffs advanced their arguments before this Court. In order to give proper consideration to those arguments, it is necessary to examine these steps in turn.
184. Needs of Australian federation : The first step involves a full appreciation of the federal character of the Australian Constitution and the checks and balances which that feature stamps on the institutions of the Commonwealth, the States and the Territories.
185. It is the federal character of the Australian Constitution that necessitates, more than in nations differently organised, a judiciary that can decide federal contests in a way that is accepted by all participants in the polity [161] . Given the necessity of drawing lines that mark off the governmental powers respectively of the Commonwealth, the States and the Territories, it is essential that there be an independent and impartial constitutional umpire for the disputes that inevitably occur. This is why federalism is legalism. It is why judicial review is an essential feature of governmental arrangements in a federal nation. The judges who perform the task of judicial review in such a polity must be, and be seen to be, legally competent, independent and impartial in the discharge of such functions.
186. These features, necessary to, and inherent in, the Judicature of the Commonwealth, take on an added significance in Australia because of the integrated character of the national Judicature and the capacity of the Federal Parliament to invest the courts of the States (and also of the Territories) with federal jurisdiction [162] . In this respect, the Australian Constitution is not only different from that of the United Kingdom, hitherto a unitary state. It is also distinct from that of the United States and Canada where, although federations, different judicial arrangements apply. These features of the Australian constitutional system make it dangerous to assume that the organisation of the judiciary accepted in other countries will necessarily satisfy Australian constitutional norms.
187. During argument, much was made of the existence of courts with part-time members in the United Kingdom, both before and after Australian Federation [163] . Thus, the English arrangements for Recorders and Deputy High Court Judges, appointed part-time from practising barristers (as well as Scottish arrangements for temporary sheriffs [164] and temporary judges [165] ), were described. Although the Scottish part-time sheriffs were recently found incompatible with the requirements of independence and impartiality in Art 6(1) of the European Convention, the very large number of part-time judicial officers throughout the United Kingdom was urged as a reason why the smaller number of Australian acting State judges should cause no constitutional offence.
188. It is understandable that such an argument should be mounted. There are indeed many similarities between the judiciary in Australia and that of the United Kingdom. However, there is a fundamental difference. Australian courts have special responsibilities in deciding federal questions. Inevitably, such questions concern governmental issues. They involve issues that are political in the broad sense of that word [166] . So much is inescapable in judicial review in a federation in those courts that are entrusted with that responsibility.
189. It is therefore a fundamental mistake to attach large significance to the arrangements for temporary judicial appointments in non-federal countries, including the United Kingdom, New Zealand and South Africa [167] . The legal texts are distinguishable. The constitutional obligations are different. The traditions that have grown around those obligations are peculiar. One illustration will suffice. The combination in the United Kingdom, until recently, in one person, the Lord Chancellor, of legislative, executive and judicial functions, is inconceivable in an Australian constitutional context [168] .
190. The absence, until the European Convention recently forced the issue on courts in the United Kingdom, of any consideration of the possible deficiencies in the large cohort of temporary judges is another reason for considerable reserve in considering the plaintiffs' present challenge in conventional terms, according to the United Kingdom's legal institutions and traditions. Similarly, pre-Federation, colonial debates and assumptions in Australia [169] are, with respect, of very limited utility in judging what the federal Constitution requires, and permits, in contemporary Australia.
191. As it happens, the pre-Federation practice in Australia (in part because of the small size and high status of courts in colonial times) was uniformly to limit acting judicial appointments to special ad hoc circumstances. Generally speaking, Canada has followed a similar convention. In the context of very different constitutional provisions for the appointment of provincial judges in Canada [170] and despite a decision upholding part-time inferior court appointments in Quebec [171] , such appointments have not proliferated. This may have been because the Supreme Court of Canada recognised, and stated, that the appointment of such part-time judges was not "ideal" [172] .
192. Advent of the Kable principle : With Australian Federation in 1901, the peculiar arrangements for the exercise of federal jurisdiction by State (and eventually Territory) courts commenced. There is no equivalent constitutional arrangement in the United States or Canadian Constitutions. It was a sensible expedient in Australia given the small population; the limited amount of litigation; the high standing of the State (previously colonial) courts; and economic considerations. However, necessarily involved in the vesting of federal jurisdiction in State courts was an assumption which it took nearly a century for this Court to express. In Kable , this Court spelt out what had earlier been assumed. This was that, in order to be courts suitable for the exercise of federal jurisdiction under the Constitution, State courts (and by analogy Territory courts [173] ) were required to exhibit certain basic qualities as "courts" (or specifically as a "State Supreme Court" [174] ) named as such in the Constitution.
193. From this relatively simple, one might almost say self-evident, implication, drawn from the language and structure of Ch III of the Constitution (and specifically ss 73 and 77), have flowed the decision in Kable and a large body of judicial dicta ; but not yet certainty about the scope of the doctrine or clarity about the occasions for its application [175] . It is true that, in the past, the appointment of acting judges has been noted by this Court, without criticism [176] . However, the basis and number of such appointments was then quite different from that lately evident in New South Wales. If the criterion is whether there has now been "a series of acting rather than full [judicial] appointments which is so extensive as to distort the character of the court concerned" [177] , that criterion is, in my view, now fulfilled in the case of the Supreme Court of New South Wales.
194. It has been said that the circumstances that must be proved to invoke the principle of repugnance expressed in Kable must be "extraordinary" [178] . Being an implication derived from the Constitution, it cannot, of its nature, be confined to individual factual circumstances. It will attach wherever incompatibility is shown between a State law and the fundamental assumptions inherent in the exercise of federal jurisdiction. The criterion of "public confidence" is conclusory, sometimes inappropriate and usually unhelpful [179] . However, a more useful test, suggested in a number of the cases, involves consideration of whether, if enacted by the Federal Parliament, the impugned provision would be impermissible for a federal court [180] . This cannot be an exclusive test of validity [181] . Yet it is often a useful check because of the fundamental assumption that the Constitution did not intend to adopt basically different standards of justice in federal and State courts [182] . It is uncontested that the federal Constitution imposes a complete prohibition on acting appointments to federal judicial office in Australia.
195. Even if such an absolute prohibition is not implied in the case of State courts (including a State Supreme Court) by the repugnancy principle in Kable , that principle is engaged, at least, when an attempt is made by State law and practice to alter the institutional arrangements of a State court in ways that threaten the real and apparent independence and impartiality of that court and of the State judicial officers serving in it. If the institutional alterations result in a "court" that is qualitatively changed (so that, in the case of a Supreme Court, it does not answer to its constitutional description as such) the Kable rule is engaged. Self-evidently, matters of judgment and basic constitutional values inform such assessments. These, in turn, are influenced by considerations of the history and functions of acting commissions and the context in which they apply.
196. Neither the federal Constitution nor Kable assimilates State courts or their judges and officers, with federal courts, their judges and officers [183] . Thus, Kable does not require the elimination of variations in the organisation and operation of State courts, enacted according to perceived local needs and requirements from time to time [184] . Those who are not ordinarily enthusiastic for the federal character of our Constitution can sometimes become highly defensive of State experimentation when it comes to imposing new institutional arrangements on State courts [185] . However, consistently with the Kable principle, there is certainly a limit. That limit is fixed by the standards of independence and impartiality that are demanded of State courts for their exercise of federal jurisdiction. Those features find a reflection in the general character of the federal judiciary even when they do not oblige observance of precisely the same requirements.
197. It must be doubted today whether the remarks of Gibbs CJ, to the effect that a State court composed of laymen, with no security of tenure, might effectively be invested with federal jurisdiction [186] , survive the insight which this Court's decision in Kable provided. When Kable was expressed, its insight was new. This Court is still discovering Kable's applications. They are beneficial and protective of judicial institutions throughout Australia. They exist not for the advantage of judges themselves but for the courts and all persons dependent on the protection of the law. The Kable principle thus lies in the bedrock of Australia's constitutional assumptions. In this respect, it is a practical and necessary counterpart to that other fundamental principle, stated by Dixon J in Australian Communist Party v The Commonwealth [187] , that "the rule of law forms an assumption" upon the acceptance of which the Australian Constitution is framed.
198. Numerous decisions of this Court contain remarks to the effect that the Federal Parliament must, when investing State courts with federal jurisdiction, take those courts as it finds them "with all [their] limitations as to jurisdiction, unless otherwise expressly declared" [188] . However, virtually all of these words were written before the Kable enlightenment. They now need to be reconsidered in the light of the important general principle of constitutional law expressed in Kable .
199. The legal mind clings to oft-repeated formulae . But when a new constitutional truth is perceived, it is necessary to reconsider past observations. It is not now the constitutional law of Australia that the Federal Parliament must accept all State courts as it finds them when investing federal jurisdiction in such courts. So far as the State Supreme Courts are concerned, with their guaranteed constitutional status, it is inherent in their existence and the necessity that they should receive and exercise federal jurisdiction, that they will not depart from a capacity to do so in a way appropriate to such jurisdiction. If they did so depart, this Court would not be without remedy. As to other State courts, such as a District Court, if they were to depart from Kable requirements, it would be open to the Federal Parliament to limit their exercise of federal jurisdiction to such courts as particularly constituted. In the practical circumstances of federation, it may be expected that repugnance and incompatibility will generally be avoided so as to maintain this beneficial feature of the Constitution. But, if they are not, Kable affords a judicial remedy.
200. Decisions of this Court, since Kable , have contained remarks that can be read as favourable to experimentation in features of Territory judicial appointments [189] . Some such remarks, in obiter comments, have suggested the validity of part-time or temporary judicial commissions [190] . However, such observations present no difficulty for the plaintiffs' challenge in these proceedings.
201. First, there is no earlier occasion when this Court has been asked specifically to rule on the validity of the appointment of an acting judge of a State Supreme Court. Secondly, the constitutional position of the courts of the Territories, in respect of which such remarks have been made, is separate, and different, from that of State courts [191] and especially State Supreme Courts [192] . The constitutional status of Territory courts considered in Eastman and Bradley (Territory courts not being specifically named in Ch III as such) is still in a process of evolution [193] . Thirdly, the plaintiffs did not contest the permissibility of ad hoc , individual, special arrangements, including for temporary or acting judges in State (or Territory) courts, as such. What they challenged were appointments as instances of substantial institutional alteration.
202. Far-fetched requirements for multiple appointments of acting judges, including the sudden death of many judges in a terrorist attack or an influenza pandemic, were advanced by the defendants in support of the unrestricted appointment of acting judges. Such emergencies constitute an entirely different circumstance from that disclosed by the record showing what has actually occurred in New South Wales in recent years. In fact, they highlight the arguably valid and proper use of a special statutory power to appoint acting State judges. They differentiate that use from the purposes of fulfilling the basic institutional needs of the State courts, evident in New South Wales since 1989.
203. Finally, it is true that, so far, the Kable doctrine, although often invoked, has not resulted in the invalidation of many State laws. Apart from in Kable itself, the only other instance in which the principle has been applied was in Queensland in Re Criminal Proceeds Confiscation Act 2002 [194] . This is why the Kable doctrine has been described as one that is "under-performing" [195] . In this Court, there have been many rejections [196] . But these facts are immaterial. The circumstances of the other cases were different. No one in these proceedings challenged the authority or correctness of the Kable principle. There are some indications that the principle may be operating prophylactically [197] . Thus, since Kable was decided by this Court, only retired judges have been appointed to acting positions in the Supreme Court of New South Wales. This was a prudent step to reduce the risks of Kable invalidity. However, the invalidity is fundamentally concerned with institutional considerations touching the integrity of State courts [198] . That is the specific defect which the plaintiffs allege has happened here. It is the feature of the proceedings that makes the decision in Kable specially applicable.
204. Context : international human rights : There is a third consideration. Legal interpretation involves the derivation of meaning from words, understood in context. That context includes the sentence in which the words appear [199] , the parts of the legal document that throw light on the meaning, considerations of legal history and background legal materials. However, it also includes admissible social facts and the national and international circumstances in which the legal document in question is intended to operate. It is this modern understanding of the process of interpretation that leads, in constitutional construction, to the examination of the context of international human rights law as it operates in the contemporary world [200] .
205. It is futile to suggest that a contemporary lawyer ignores this international context when ascertaining the meaning of relevant provisions of the Australian Constitution. An instance of the process (not always acknowledged or perhaps perceived) is the recent decision of this Court in Koroitamana v Commonwealth [201] . The issue there was whether a child, born in Australia, answered to the description of "alien" in s 51(xix) of the Constitution. In answering this question, four members of this Court, including myself, treated it as relevant to examine the provisions of international law contained in the Convention on the Reduction of Statelessness [202] . Such provisions of international law cast light on the meaning of alienage for the purposes of the Constitution, as understood in contemporary circumstances.
206. The Supreme Court of the United States has also adopted this approach, in the interpretation of the United States Constitution, paying due regard to international law and practice [203] . This is a natural and inevitable development in the law. Contemporary judges and lawyers can hardly leave their knowledge about the developments of the world and of international law at the courtroom door when they enter to perform their duties. With respect, I do not accept the view that the meaning of the Australian Constitution is to be ascertained solely or mainly by reference to what the words are taken to have meant in 1900 [204] . That approach is fundamentally inconsistent with the character of the Constitution as an instrument of government intended to be of indefinite duration.
207. The use of international law is a further advance in the approach to interpretation that has occurred in this Court, and elsewhere, since the early decisions about the features of State courts that would be compatible with the implications of Ch III of the federal Constitution and specifically the vesting of federal jurisdiction in State courts [205] . The process will continue to gather pace, stimulated by access to, and knowledge about, the decisions of national and transnational tribunals applying international human rights law.
208. The International Covenant on Civil and Political Rights ("the ICCPR") provides, relevantly, in Art 14(1), that:
"[a]ll persons shall be equal before the courts and tribunals. In the determination of ... his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law."
This provision supplements Art 10 of the Universal Declaration of Human Rights. There are analogous provisions in each of the regional human rights instruments [206] .
209. In order to decide whether a court or tribunal may be considered "independent" for these purposes, regard is usually had (amongst other things) to the manner of the appointment of its members; their terms of office; the existence of effective guarantees against outside pressure; and the question whether the body presents an appearance of independence and impartiality [207] . Courts have identified various "essential conditions" for judicial independence, having regard to their own traditions and legal systems. These include security of tenure; financial security; and institutional independence [208] . Depending on the circumstances, and measured against such standards, the appointment of acting judges has enlivened concern in several countries. Sometimes, the appointments have been held to fall short of the requirement of manifest independence and integrity [209] . On other occasions, the appointments have been held compatible with such fundamental standards [210] .
210. The ICCPR is not, as such, part of Australia's municipal law. Still less are its provisions repeated in the federal or State Constitutions. Where municipal law is clear, including in the Constitution, it is the duty of Australian courts to give effect to it [211] . However, where, as here, the applicable law is in a state of development, especially since Kable , and is inescapably concerned with general principles [212] , it is helpful to examine the way in which the rules governing judicial independence and impartiality have been elaborated, both under the ICCPR and elsewhere. In the submissions of the parties and the interveners in these proceedings, that elaboration was undertaken - itself a sign of changing practices in legal argument in Australia.
211. The United Nations Human Rights Committee, which decides communications alleging non-compliance by states parties with the ICCPR, has strongly endorsed the importance of judicial tenure as an essential prerequisite for an independent judiciary [213] . In general observations on judicial arrangements in one country, the Committee expressed its concern about the lack of tenure as an impediment to the independence of the judiciary [214] . The Committee, like the European Court of Human Rights in upholding Art 6(1) of the European Convention, has drawn distinctions between:
- •
- The standards applicable to administrative as distinct from judicial tribunals [215] ;
- •
- The standards stated in the legal text and the requisite appearance of independence and "objective impartiality" in practice [216] ; and
- •
- Individual infractions and institutional defects [217] , the latter ordinarily being more serious because they are likely to repeat their consequences in many decisions made by the flawed institution.
212. The application of the European Convention to the municipal law of the United Kingdom [218] has required the courts of that country to consider directly the necessities of independence and impartiality of its courts in accordance with the jurisprudence that has grown around these basic concepts. In Australia, we cannot use the same legal material in an identical way in elaborating the requirements of our own Constitution and laws. Nevertheless, the many recent judicial decisions in the United Kingdom and elsewhere concerning acting and temporary judges, collected in the reasons of Lord Justice-Clerk Cullen in Starrs [219] , bear out the conclusion in 1998 of the then United Nations Special Rapporteur on the Independence of the Judiciary (Dato' Param Cumaraswamy). This was that the growing understanding of the needs for the protection of judicial independence "send alarm bells to some jurisdictions where temporary judges are appointed as a matter of course without regard to the grave constitutional flaw in such appointment" [220] .
213. It was considerations such as these that resulted in the conclusion of the High Court of Justiciary in Scotland that the institutional arrangements for the temporary sheriffs in that country (which had been in place for many years) should be declared incompatible with the right to trial by "an independent and impartial tribunal". In Starrs , that conclusion invalidated the conviction of the applicant by such a sheriff [221] . As Lord Reed observed [222] :
"[T]he United Kingdom practice of appointing temporary judges appears to be unusual within a European context: it appears that in almost all the other systems surveyed the appointment of a temporary judge by the executive for a period of one year, renewable at the discretion of the executive, would be regarded as unconstitutional".
214. In the elaboration of the Australian Constitution, this Court should maintain an awareness of international expositions of the requirements of judicial independence and impartiality, including in respect of judicial tenure. Each complaint of individual and institutional infractions must be judged on its own merits and in an Australian context. Considerations of practicality, economy and post-service desire for further judicial service may be given weight. Constitutional provisions, treaty obligations and institutional arrangements will inevitably vary as between different countries. However, the significance of the elaboration of international human rights standards in the context of acting and part-time judges is now clear. Increasingly, the defects of such appointments, when measured against the requirements of fundamental human rights, have been identified and given effect by courts and tribunals of high authority in many countries.
215. This Court should approach the resolution of the plaintiffs' challenge in the present proceedings with such worldwide developments in mind. The fact that they represent new criticisms of local judicial arrangements which may have lasted for some time is not a reason to reject them. The law is full of new insights. Kable itself was one of them. And in any case, the plaintiffs' institutional criticism concerns developments in the Australian judiciary, specifically the Supreme Court of New South Wales, that the evidence shows are less than twenty years old.
216. Other contextual considerations : The three remaining steps in the plaintiffs' submissions can be dealt with more briefly. They require a recognition of other contextual features that lend colour to the alteration of the judicial institution of which the plaintiffs complain; the accumulation of changes so that they may be perceived as an attempted institutional modification, specifically of the State Supreme Court; and a recognition of the obligation of this Court, as the defender of the Constitution (and specifically of its judicial Chapter), to be vigilant against such alterations [223] .
217. The materials before this Court lend support to the plaintiffs' submissions. Of greatest importance was the factual material concerning the incidence of the acting appointments described. The shift in practice is arguably important because of the essential fragility of judicial power and authority; and also because of the special importance it enjoys in a federation [224] . Inevitably, the role of the judiciary in federations occasions criticism, and sometimes attack, from members of the other branches of government. Such attacks have increased in recent years [225] , not only in Australia [226] .
218. In such circumstances, this Court should be specially protective of the Judicature from intrusions by the other branches of government upon judicial independence and impartiality. If the Court fails to discharge this constitutional function, it cannot be assumed that others will fill the gap. This institutional point was made by Phillips JA in remarks on his retirement from the Court of Appeal of Victoria. The plaintiffs included those remarks in their materials. By reference to proposed legislation in Victoria, designed to facilitate an institutional increase in the use of acting judges in that State, his Honour said, in words applicable here [227] :
"It is one thing to tolerate the occasional acting appointment to this court for a limited time or purpose; it is altogether different to institutionalise such temporary appointments at the discretion of the executive."
219. These remarks must be clearly understood against the background of recent experience in Australia. In New South Wales, the appointment of acting judges in large numbers was first justified to remove a specific backlog. However, the temporary expedient soon became a permanent feature of the affected courts [228] . The objections to such an institutional change are many, quite apart from the fact that they were accomplished without specific debate in, or new laws enacted by, the State Parliament. To the extent that practising lawyers are temporarily appointed, later or meantime returning to their individual practices, the defects in manifest independence and impartiality are obvious. They were noticed in Starrs [229] where Lord Reed cited some extra-curial remarks of Brennan CJ [230] , as well as the following remarks of my own [231] :
"But what of the lawyer who would welcome a permanent appointment? What of the problem of such a lawyer faced with a decision which might be very upsetting to government, unpopular with the media or disturbing to some powerful body with influence? Anecdotal stories soon spread about the 'form' of acting judges which may harm their chances of permanent appointment in a way that is unjust. Such psychological pressures, however subtle, should not be imposed on decision-makers."
220. At a time of increased media and other attacks on judges in Australia, an institutional shift that shifts a significant cohort of the State judiciary from permanent tenured judges to part-time judges is seriously threatening to the independence and impartiality of that judiciary. In the nature of such threats, their impact is difficult to prove. But they are not theoretical. Governments are excused from appointing adequate numbers of permanent judges (with implications for staff, facilities and pensions). Litigants are subject to the risk of judges of short tenure and with inappropriate distractions. The tenured judiciary is undermined by such an alteration in its basic composition. The part-time and acting judges inevitably ride on the reputation earned by the tenured judiciary [232] . And although during service the acting judge is immune from day-to-day executive interference, their desire for reappointment as an acting judge (or confirmation as a permanent judge) renders the temporary appointee dependent on a decision by the Executive. This is not a feature of the tenure of permanent judges. Such judges, once appointed, are not beholden to the Executive for any wished-for continuation in office. Typically, they serve for a long interval, terminating on a specified birthday known in advance or upon earlier death or upon resignation decided by the judge. In Australia, the changed practice, instanced in these proceedings, endangers the separation of the senior judiciary from the Executive won in the Act of Settlement 1700 [233] . It should be nipped in the bud, although by now the bud is in full flower.
221. It is fair to say that the worst features of the short-term appointments of practising lawyers to the Supreme Court of New South Wales have given way, in more recent years, to the exclusive appointment of retired judges as acting judges of the Supreme Court. I accept that this reduces the institutional affront [234] . However, it does not remove it. If it is decided that the years of service of permanent judges should be extended, the course consistent with manifest independence and impartiality of the judiciary of the State is to extend (or remove) the age of mandatory retirement. Such an extension occurred when that age was altered in New South Wales from seventy years to seventy-two [235] .
222. The objections of principle to the present arrangements for extension of such appointments include:
- (1)
- That each extension is dependent in every case on the will of the Executive;
- (2)
- That some retired judges clearly desire continuation in office and are thus beholden for this purpose, at regular and short-term rests, sometimes repeatedly, to the will of the Executive;
- (3)
- That some acting judges mix intervals of judicial service with private professional activities on their own behalf, thereby breaking down the judicial culture of an exclusive, dedicated, tenured service that previously existed; and
- (4)
- That acting judges lack the staffing, personal benefits and institutional resources of permanent judges and, as has been observed, in appellate courts, typically (but not always) appear to play a more limited role when compared with permanent appellate judges.
223. To suggest that an acting judge, desirous of reappointment, confirmation as a permanent judge or promotion in appointment would be wholly uninfluenced, on the basis of a possible reappointment, by the risk of upsetting government with a decision, may be correct in the individual case. But it makes a considerable demand on human nature. Not all reasonable observers will be persuaded that it is so [236] .
224. What is at stake in these proceedings, as the plaintiffs submitted, is not the accretion of flexibility and post-judicial retirement activities congenial to some former judges. Doubtless arguments can be advanced on both sides on these grounds. The danger of the institutional shift that has occurred, including in the Supreme Court of New South Wales, is that the State judicial institution is thereby weakened by an alteration of its membership to include a significant number, in stable proportion, of persons intermittently reliant upon government for renewal, at relatively short intervals. It is a development fundamentally wrong in principle. It is alien to the previous arrangements for judicial appointments to superior courts that obtained in Australia since colonial days. It is inconsistent with the constitutional character of the Supreme Court of a State of the Commonwealth as existing at the time of Federation and for nearly ninety years thereafter [237] .
225. In the nature of the accretions of executive power, once the process begins, it is likely to extend to other States [238] . Although the defendants argued that the law of disqualification for apparent bias was an adequate protection for judicial independence and integrity, that submission is unsound. That law exists to repair individual infractions in particular cases. The plaintiffs' challenge was more fundamental in character and concerned the validity of institutional arrangements. In Fardon v Attorney-General (Qld ), McHugh J acknowledged that the Kable principle was more likely to be applied in the future "in respect of the terms, conditions and manner of appointment of State judges ... rather than in the context of Kable -type legislation" [239] . So, in my opinion, it has proved in these proceedings.
226. To conform to the federal Constitution, the previous condition of things must be restored. This Court should hold that, in respect of the Supreme Court of New South Wales, the repeated appointment of acting judges in recent years, in the numbers and under the arrangements shown in the record, is constitutionally impermissible. With respect, it is not sufficient to hint that in some future, unidentified and uncertain time, such a ruling might be made [240] .
227. There comes a time when the number of acting judges appointed, and appointed persistently, works an identifiable institutional alteration to the courts affected. Defining when that moment arrives may be difficult. But it invites the discharge of the most important function entrusted to this Court by the Constitution. When the test of principle arises, this Court must respond. Who can seriously doubt that the power provided by s 37 of the Supreme Court Act is now being used in an utterly different way than was formerly the case and than was expected when the facility of acting appointments was enacted? The institutional change undermines the integrity and independence of the Supreme Court in a manner that occasional, special, ad hoc acting appointments never did. This Court should say so. It should fashion orders to give effect to that constitutional conclusion.
228. When Austin v The Commonwealth [241] came before this Court, it was astute to find a constitutional implication protective of what the majority saw as the necessity of the State judiciary (specifically the State Supreme Court) to be free of a disability or burden on its judicial activities by reason of the operation upon the remuneration of State judicial officers of a federal law of income taxation of general application. I dissented in the result, although I recognised the protection afforded by the federal Constitution for "the very frame of the Constitution" as stated in Melbourne Corporation v The Commonwealth [242] and hence, to some degree, of the integrity and independence of the State judiciary [243] . With respect to those of a different view, I regard any attitude of "Dammit, let 'em do it" [244] as alien to this Court's proper constitutional function. To the extent that this philosophy is "coming along nicely" [245] , it is time for this Court to change direction.
229. I also regard it as unfortunate, in these proceedings, where the threat to the integrity and independence of the State courts is much more direct, endemic and dangerous than in Austin , and where the interests of litigants and the public generally are involved, not just judicial remuneration, that a similar vigilance to the application of the implied principles of the Constitution has not attracted the support of the majority of this Court.
Conclusions and orders
230. Outcome of proceedings : By the foregoing analysis, Foster AJ had no legal authority to serve as an acting judge of the Supreme Court of New South Wales. To the extent that s 37 of the Supreme Court Act appeared to afford him such authority, and to sustain the commission that he received from the State Governor, it was invalid under the federal Constitution. The section should be read down so as to conform to the federal constitutional prerequisites.
231. Those constitutional prerequisites permit exceptional and occasional appointments of acting State judges, including to the Supreme Court. However, they do not permit appointments, en bloc , of such a number of acting judges, for such durations as would have the effect of altering the character of the Supreme Court as an institution suitable for the vesting of federal jurisdiction under the Constitution. In the result, the purported commission as an acting judge given to Foster AJ was invalid. It was of no legal effect. It follows that Foster AJ's purported orders imposed on the plaintiffs are of no legal validity. No argument of waiver or acquiescence stands in the way of giving effect to this conclusion. Nor, in the face of the Constitution, does the supposed de facto officers doctrine.
232. Orders : There are three proceedings in this Court: (1) an application commenced by writ in the original jurisdiction of this Court; (2) a cause removed from the Supreme Court; and (3) an application for special leave to appeal to this Court. I would dispose of the three proceedings in the following way:
233. The questions reserved for the opinion of the Full Court should be answered as follows:
- 1.
- All of the successive appointments of the Honourable Michael Leader Foster to act as a Judge of the Supreme Court of New South Wales were invalid; and
- 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.
234. In the proceedings commenced by writ in this Court, the demurrers should be overruled. Judgment should be entered for the plaintiffs. The proceedings should be returned to a single Justice to be disposed of consistently with these reasons.
235. In the application for special leave to appeal from the judgment of the Court of Appeal of the Supreme Court of New South Wales, the necessary extension of time should be provided for the bringing of the application out of time; special leave should be granted; the appeal should be allowed; the judgment of the Court of Appeal should be set aside; in place of that judgment it should be ordered that the appeal to the Court of Appeal be allowed and the judgment purportedly made by Foster AJ on 28 August 2002 be set aside. The matter should be remitted to the Supreme Court of New South Wales for retrial. There should be no order for the costs of the proceedings in the Supreme Court.
236. The plaintiffs' costs should be paid by the unsuccessful parties in each proceeding.