Quach v New South Wales Civil and Administrative Tribunal

The applicant, Quach, challenged the validity of orders made by the New South Wales Civil and Administrative Tribunal (NCAT) on the basis that the Court of Appeal, which had heard his appeal from NCAT, was invalidly constituted. The core of his argument was that the appointment of judges to the Court of Appeal was governed by section 72 of the Commonwealth Constitution, which prescribes a retirement age of 70 for federal judges, and that the judges who heard his appeal were older than this age.

The Court of Appeal was required to determine whether section 72 of the Commonwealth Constitution, which pertains to the appointment, tenure, and remuneration of judges of federal courts, has any application to the appointment of judges of State Supreme Courts, including the Court of Appeal of New South Wales. Consequently, the Court had to consider whether the Court of Appeal was validly constituted and, if not, whether the orders it had made were therefore invalid.

The Court held that section 72 of the Commonwealth Constitution applies exclusively to judges of the High Court and other federal courts. It does not impose any limitations on the age of appointment or tenure of judges of State Supreme Courts. The appointment and tenure of judges of the Supreme Court of New South Wales, including the Court of Appeal, are governed by the relevant New South Wales legislation, namely the *Supreme Court Act 1970* (NSW). The Court reasoned that the text and constitutional context of section 72 clearly indicate its limited scope to federal judicial officers. Therefore, the judges who heard the applicant's appeal were validly appointed and the Court of Appeal was validly constituted.

The Court of Appeal dismissed the notice of motion filed by the applicant on 29 August 2018.