Forge v Australian Securities and Investments Commission

The case of *Forge v Australian Securities and Investments Commission* concerned a challenge to the validity of appointments made under section 37 of the *Supreme Court Act 1970* (NSW), which permitted individuals to act as judges of the Supreme Court of New South Wales for periods not exceeding 12 months. The specific dispute involved the Honourable Michael Leader Foster, a former Federal Court judge, who had been appointed as an Acting Judge of the Supreme Court of New South Wales through a series of commissions. The Australian Securities and Investments Commission (ASIC) had brought proceedings against Mr Forge and others, alleging contraventions of civil penalty provisions of corporations legislation, which were heard and determined by Mr Foster during his appointments.

The central legal issues before the High Court of Australia were whether the appointments of Mr Foster as an Acting Judge were validly made, and consequently, whether section 37 of the *Supreme Court Act 1970* (NSW) was constitutionally valid. This involved considering whether the appointment of Acting Judges, particularly in significant numbers and through successive commissions, substantially impaired public confidence in the institutional integrity and impartiality of the Supreme Court, thereby preventing it from answering the constitutional description of a "Supreme Court of any State." The Court also considered whether the fact that Acting Judges were typically retired judges was relevant, and whether the parties were precluded from raising the validity of the appointments due to acquiescence or waiver, although this latter point was not pursued by the opposing parties.

The High Court determined that the historical context of acting judges in the Australian colonies prior to federation indicated that Chapter III of the Constitution contemplated the validity of state legislation permitting such appointments. The Court rejected arguments that the sheer number of acting judges appointed could be decisive, finding that it was necessary to consider the reasons for their appointment and the safeguards in place to protect judicial independence and impartiality. The Court found that there were ample safeguards and no evidence to suggest that the appointments of acting judges were inconsistent with the constitutional requirements for the exercise of judicial power. Accordingly, section 37 of the *Supreme Court Act 1970* (NSW) was held to be valid, and the appointments made under it were also valid.

The High Court allowed the demurrers filed by the First and Second Defendants to the Statement of Claim and entered judgment for the Defendants with costs. This outcome meant that the challenge to the validity of section 37 of the *Supreme Court Act 1970* (NSW) and, by extension, the appointments of Mr Foster as an Acting Judge, failed.