High Court of Australia

Forge v Australian Securities and Investments Commission [2006] HCA 44

Australian Securities and Investments Commission v Forge

Forge v Australian Securities and Investments Commission

228 CLR 45; 80 ALJR 1606; 229 ALR 223

5 Sep 2006

Case Number: C7/2005 C12/2005 S301/2005


Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, Crennan JJ


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.

Words and phrases – "Acting Judges", "court", "impartiality", "institutional integrity", "judicial independence", "Supreme Court of any State".

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.

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