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)

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(Judgment by: Callinan 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

Court:

Judges: Gleeson CJ
Gummow
Kirby
Hayne

CallinanHeydon
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

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Judgment by:
Callinan J

237. CALLINAN J. I agree with the reasons for judgment of Gummow, Hayne and Crennan JJ with respect to the application of the relevant transitional provisions to these matters.

238. As to the validity of s 37 of the Supreme Court Act 1970 (NSW), the appointment of Foster AJ pursuant to it, and, in consequence, the validity of the proceedings before him, I would only wish to add a few observations to the reasons for judgment of Gleeson CJ, with which I agree. Before making those observations I should acknowledge my debt to Heydon J for his valuable history of acting judicial appointments in the colonies before federation.

239. As the Chief Justice points out, there are likely to be differing views held by judges about judicial appointments. Some of these are canvassed in his Honour's reasons and in the joint judgment. In 1997 however, the eight Chief Justices of the States and Territories agreed upon the principles which should apply to judicial appointments, and the exercise of judicial power by judges appointed to non-federal courts ^[246] :

"(1) Persons appointed as Judges of those Courts should be duly appointed to judicial office with security of tenure until the statutory age of retirement. However, there is no objection in principle to:

(a)

the allocation of judicial duties to a retired judge if made by the judicial head of the relevant court in exercise of a statutory power; or

(b)

the appointment of an acting judge, whether a retired judge or not, provided that the appointment of an acting judge is made with the approval of the judicial head of the court to which the judge is appointed and provided that the appointment is made only in special circumstances which render it necessary.

(2) The appointment of an acting judge to avoid meeting a need for a permanent appointment is objectionable in principle.

(3) The holder of a judicial office should not, during the term of that office, be dependent upon the Executive Government for the continuance of the right to exercise that judicial office or any particular jurisdiction or power associated with that office.

(4) There is no objection in principle to the Executive Government appointing a judge, who holds a judicial office on terms consistent with principle (1), to exercise a particular jurisdiction associated with the judge's office, or to an additional judicial office, in either case for a limited term provided that:

(a)

the judge consents;

(b)

the appointment is made with the consent of the judicial head of the Court from which the judge is chosen;

(c)

the appointment is for a substantial term, and is not renewable;

(d)

the appointment is not terminable or revocable during its term by the Executive Government unless:

(I)

the judge is removed from the first mentioned judicial office; or

(II)

the particular jurisdiction or additional judicial office is abolished.

(5) It should not be within the power of Executive Government to appoint a holder of judicial office to any position of seniority or administrative responsibility or of increased status or emoluments within the judiciary for a limited renewable term or on the basis that the appointment is revocable by Executive Government, subject only to the need, if provided for by statute, to appoint acting judicial heads of Courts during the absence of a judicial head or during the inability of a judicial head for the time being to perform the duties of the office.

(6) There is no objection in principle to the appointment of judges to positions of administrative responsibility within Courts for limited terms provided that such appointments are made by the Court concerned or by the judicial head of the court concerned."

240. That agreement about those principles was reached by persons of such eminence and experience necessarily means that they should be accorded respect by those responsible for judicial appointments.

241. There are, of course, other matters to be weighed. Even though the population may be ageing, institutions, including courts, are likely to benefit from the infusion of younger appointees bringing with them enthusiasm and vigour, allied of course with suitable experience and qualifications. It would be unfortunate if any practice were to be adopted of obstructing that infusion by the widespread appointment of retired judges for long and repeated periods. There is also this consideration. The appointment of suitably qualified acting judges to the mainstream courts is likely to produce a better system of justice than the establishment of special tribunals outside that mainstream with restricted appeals from them, staffed by persons for relatively short terms, whether renewable or not, and therefore lacking the institutional history, traditions and protections found in the courts.

242. I too would join in the orders proposed in the joint judgment.