Westpac Banking Corporation v Director of Public Prosecutions (Cth)

[2005] HCATrans 894

[2005] HCATrans 894

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S453 of 2005

B e t w e e n -

WESTPAC BANKING CORPORATION

Plaintiff

and

DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)

First Defendant

OFFICIAL TRUSTEE IN BANKRUPTCY

Second Defendant

Summons

GLEESON CJ

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON THURSDAY, 3 NOVEMBER 2005, AT 2.14 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please your Honour, I appear with my learned friend, MR P.J. DOWDY, for the plaintiff.  (instructed by Henry Davis York)

MS M.M. GORDON, SC:   May it please the Court, I appear with my learned friend, MR D.W. BENNETT, for the first defendant.  (instructed by Director of Public Prosecutions (Commonwealth))

MR P.G. SEST:   May it please the Court, I appear on behalf of the second defendant.  (instructed by Australian Government Solicitor)

MR H.C. BURMESTER, QC:   If it please the Court, I appear on behalf of the Commonwealth Attorney‑General….. (instructed by Australian Government Solicitor)

HIS HONOUR:   I have asked the Registry to mention to the parties that I hold some shares in Westpac.  I understand that that does not cause any problem.  Yes, Mr Walker.

MR WALKER:   Your Honour will have seen the submissions pursuant to the Rules and, in particular, could I go straight to the first defendant’s submissions where your Honour will have seen an alternative position presented in paragraph 16.

HIS HONOUR:   What is the current status of the proceedings before Justice Stone?  A lot of these papers were written before 16 September and ‑ ‑ ‑

MR WALKER:   It is stayed by consent, as I understand the position, your Honour.

HIS HONOUR:   For what purpose?

MR WALKER:   Pending the approach to be taken in this Court; only for the purpose of awaiting that.

HIS HONOUR:   Thank you.

MR WALKER:   Could I take your Honour to page 6 of the written submissions prepared by my friends for the first defendant.  There is an alternative position there presented in paragraph 16.  The position that the first defendant puts is one which has been considered by us.  We see merit in what has been put forward, with respect.  To that end, we have prepared short minutes which we have taken the liberty of describing as a consent order.  If I could hand up a form. 

To explain our understanding, the first of those orders is to reflect what my learned friends have argued and put at the beginning of their paragraph 16 and my friend, Ms Gordon, has made it clear, and we entirely accept, that if we did not upon advice see the merit of an amendment being made, then, as it were, all bets off would be off in relation to ‑ ‑ ‑

HIS HONOUR:   Have you seen this, Ms Gordon?

MS GORDON:   I have not seen the form of the order, but my learned friend, Mr Walker, has read it to me and I understand the contents of it.  That is it matches subparagraphs (1) to (4) of 16.

MR WALKER:   That is correct.

HIS HONOUR:   Thank you.

MR WALKER:   It also takes the liberty to reserve costs, but as to (1) to (4) it is verbatim, your Honour.

HIS HONOUR:   The objective behind this, as I understand it, is to raise in a form appropriate for referral to a Full Court by special case the issue of law that you want to litigate.

MR WALKER:   Yes, quite, and to, as it were, put us on our mettle as whether we can state a special case, prepare a special case, which sufficiently removes any disputed matters of fact so as to ensure that the decision of a Full Court upon the case would settle the controversy.

HIS HONOUR:   I would like to understand a little better than I do at the moment – and I am not suggesting you take long about this – the relationship between the litigation so far, which has been going ahead over a number of years, and the particular point of law that you want to have decided by the Court.

MR WALKER:   I am not going to be able to go into every detail, your Honour, of all the litigation.  It suffices to say that, using words concerning money neutrally so as not to be tendentious, the amounts in credit at what I will call the rump of the account – a fairly large rump – opened by the perpetrator is in contest in relation to, first, the claims of the party claiming to be entitled under cheques and ‑ ‑ ‑

HIS HONOUR:   Aspinalls.

MR WALKER:   ‑ ‑ ‑ second, claimed to be appropriated, again to use a neutral term, pursuant to statutory authority, pursuant to the enactments, the validity of which are partly in question.

HIS HONOUR:   Is there a three‑cornered dispute between Aspinalls, the Trustee in Bankruptcy ‑ ‑ ‑

MR WALKER:   Either three or four, yes, your Honour.

HIS HONOUR:   What is the business of Aspinalls?

MR WALKER:   Gambling.

HIS HONOUR:   Yes, I thought so.  What, is there an allegation this is a money‑laundering procedure of some kind?

MR WALKER:   There are allegations that the money that was deposited in the account was out and out proceeds of crime for which the perpetrator has been convicted and sentenced – proceeds of theft.

HIS HONOUR:   What I cannot understand at the moment is why the resolution of the issue of law that you want to send to the Full Court is decisive of the outcome of the litigation.

MR WALKER:   That will mean that it is simply a matter between us and Aspinalls on the cheque.

HIS HONOUR:   You mean if the point of law that you want referred to the Full Court is resolved in your favour ‑ ‑ ‑

MR WALKER:   The Director of Public Prosecutions ceases to have an interest in what I will call loosely the property.

HIS HONOUR:   What about the Official Trustee in Bankruptcy?

MR WALKER:   That is not so clear, though it is at the moment difficult to see any contention by the Official Trustee in relation to Aspinalls.

HIS HONOUR:   So the resolution of the point of law will not resolve the litigation; it will just reduce the number of parties who have an interest in it?

MR WALKER:   It will resolve one set of disputes.  It will leave outstanding other matters of legal relation, though your Honour should not assume that they will necessarily be disputed; they may be.

HIS HONOUR:   If the point of law is not referred to the Full Court and the matter or matters proceed before Justice Stone, what will happen there?  I do not mean what will the ultimate outcome be; I mean will the point of law be decisive before Justice Stone or ‑ ‑ ‑

MR WALKER:   Subject to appeals.

HIS HONOUR:   Decisive in the sense that you just mentioned, that is it will ‑ ‑ ‑

MR WALKER:   It would have, at first instance, the same capacity to affect what issues remain, and therefore which would be decided by her Honour as well, as it would in the Full Court.  The difference of course is ‑ ‑ ‑

HIS HONOUR:   It is not an immensely attractive proposition to send to the Full Court a point of law that will not be decisive of the litigation, especially litigation that has been going on for some years.

MR WALKER:   Your Honour, we accept that nothing should go to the Full Court and engage its attention unless it will finally settle everything which is, as it were, placed before the Full Court.  As to, for example, the action of a cheque, it is not suggested that there is anything worthy of the Full Court’s attention which would require that to be before the Court.

HIS HONOUR:   But if the point of law is resolved against you by the Full Court, does it inevitably follow that the DPP will succeed in the litigation that is on foot before Justice Stone?

MR WALKER:   No.  It would only mean the Director had won the point that they have statutory rights.

HIS HONOUR:   You have other defences or other answers to the Director’s claim?

MR WALKER:   There are discretionary matters, yes.

HIS HONOUR:   Can you give me an example of those?

MR WALKER:   Your Honour, I cannot be exhaustive because I do not hold the brief below.  Under section 330(4)(a) there are matters relating to circumstances that would not arouse reasonable suspicion which are matters of fact clearly not appropriate for the Full Court or, to put it more positively, clearly requiring trial attention.

HIS HONOUR:   Can I mention one thing that is concerning me, Mr Walker.  There is a basic principle that you do not decide the validity of legislation unless it is necessary to decide the validity of legislation in order to resolve the litigious dispute.  I would have a lot of reluctance about referring this matter to the Full Court unless I thought that the Full Court’s decision on the validity of the legislation was necessary to resolve the dispute between the parties.

MR WALKER:   Your Honour, it is with a view to that requirement that we accept that – as I said earlier, we are on our mettle as to whether we can prepare a special case which, whether by agreements outside Court reflected in its terms or otherwise, will ensure that this is not capable of being seen as an exercise in getting judicial advice on something which may not matter.  I accept, in particular, that if there is a way to success for our client which does not involve invalidating the Act, then justifying a special case will be difficult.

However, on my understanding of the case, invalidating the Act is likely to produce a result of a kind which a special case would show either concludes the whole proceeding or leaves only questions which would have to be determined in any event.  That is why the form of the special case, as I say, requires us to be able to reach accommodation with all the concerned parties in such a way as to produce a set of facts and contentions that mean that there is no question of judicial advice involved.

HIS HONOUR:   Is there any particular urgency right at this moment about the progress of the matter?

MR WALKER:   No.

HIS HONOUR:   Let me see what your opponents have to say, Mr Walker.  Ms Gordon.

MS GORDON:   If your Honour pleases, my learned friend is right.  There are three proceedings below.  I will describe them as the Victorian proceedings, that is proceedings commenced by the DPP seeking to restrain – and I will use the neutral words – the balance of the account of Mr Chia.  Those proceedings were transferred to the Federal Court.  The second set of proceedings are proceedings which are described as the Federal Court review proceedings where Westpac sought relief under section 39B about the decision of the DPP to seek the relief it did and also under ADJR.  It is the submission of the DPP that if the issue, the subject of the proposed special case, was determined against the DPP those proceedings would go away.

HIS HONOUR:   Which proceedings?

MS GORDON:   That is both the Victorian proceedings and the review proceedings.

HIS HONOUR:   Leaving what?

MS GORDON:   Leaving what I will describe as the cheques proceeding, which is a proceeding between Westpac and Aspinalls and not involving my client.

HIS HONOUR:   Does it involve the Official Receiver in Bankruptcy?

MS GORDON:   No, it does not.  It also involves Mr Chia, but it does not involve either the DPP or the Official Trustee.  So the application which was made by our learned friends your Honour will have seen we oppose because it is vague and has a number of problems, but on the assumption that they can put forward a special case which meets our concerns, then to answer your Honour’s question, if it was successful, it would get rid of and resolve completely two sets of proceedings to which my client is a party.  If it is not successful, then it would leave, as my learned friend, Mr Walker, put to your Honour, the questions that would need to be determined in any event.

Now, there is a second basis upon which the DPP reached the conclusion that it did in the alternative as set out in paragraph 16, and that is in relation to the ongoing administration of the Act by the DPP.  They would like this question resolved sooner rather than later.

HIS HONOUR:   Do you agree with Mr Walker’s statement that there is no particular urgency this week or this month, as it were?  The reason I ask the question is that a possible course would be to just stand this matter over for two or three weeks and give the parties the opportunity to pursue this special case idea without any kind of suggestion on my part that I am inclined favourably to dealing with it by way of special case but so that they can have a chance to see if they can formulate one.

MS GORDON:   Can I say two things in response to that, your Honour.  There is no real urgency in the matter in that sense though.  The matter has been around now for a number of years and of course the DPP would like it resolved.  Your Honour’s suggestion is a good one, subject to this:  as my learned friend, Mr Walker, pointed out to your Honour at the outset, we have problems with the form of the application and so these orders and directions were to provide them with an opportunity not only to put forward a special case but in a sense to fix up their application.  In other words, if putting off the matter for a couple of weeks or three weeks to enable them

to do both tasks, then we would accept that is a reasonable proposal and should be adopted.  But it is two tasks:  the application and the special case.

HIS HONOUR:   All right.  Let us see what Mr Sest has to say.

MR SEST:   Thank you, your Honour.  It just might clarify matters to say that my client, the Official Trustee, is only a party to what my learned friend, Ms Gordon, has called the Federal Court review proceeding.  That is the one in which the conduct of the DPP in seeking the restraining order was sought.  It is only on that basis that my client is here before the Court.

HIS HONOUR:   Do you agree that if Mr Walker was successful in the point of law he wants to argue your client’s interest in any of the proceedings would disappear?

MR SEST:   I do, your Honour.  I agree with that.  Can I just say in two sentences why.  The Official Trustee’s position is dependent upon there being a restraining order.  If the Court was ultimately to resolve that there was no power to obtain that order, it would follow, in my submission, that in consequence the Official Trustee’s direction for the Court would also fall.  There would need to be consequential orders to that effect, your Honour, but that would be the logic of it.

HIS HONOUR:   Thank you.  Mr Burmester.

MR BURMESTER:    Your Honour, we would support the submissions of the DPP.  If the factual matters can be sorted out and there is agreement on a case stated, then, as Ms Gordon has said, there are some good reasons for perhaps having this question of law determined in advance and sooner rather than later, and we would support that occurring on the condition that the parties can agree on the facts.  In terms of the orders if the matter is to be adjourned, we would of course seek to be involved in any discussions with the parties about the form of any case stated.

HIS HONOUR:   Yes.  Well, Mr Walker, since there is no particular urgency about the matter, at the moment I do not see why I should not give the parties an opportunity to see whether they can resolve the matters that Ms Gordon was referring to and formulate a special case.  Having said that, you will already have detected the level of enthusiasm that I entertain about sending a matter to the Full Court that would not be decisive of the litigation or a substantial part of the litigation.

MR WALKER:   Yes, your Honour.

HIS HONOUR:   I have in mind then standing the matter over to some time during the week commencing 21 November.  Now, it does not

particularly matter to me what day in that week it is.  Do the parties have a preference?

MR WALKER:   No, your Honour.

HIS HONOUR:   What about 2.15 pm on Wednesday, 23 November?

MR WALKER:   May it please the Court.

HIS HONOUR:   Is that satisfactory to you, Ms Gordon?

MS GORDON:   Yes, your Honour.

HIS HONOUR:   To you, Mr Sest?

MR SEST:   Yes, it is, your Honour.

MR WALKER:   I should just say, your Honour, first, that we will certainly be considering the matters that Ms Gordon has raised about the amended application and, second, the Commonwealth, as Mr Burmester requested, will most certainly be consulted.

HIS HONOUR:   All right.  Then I will adjourn the matter until 2.15 pm on Wednesday, 23 November 2005.  I will reserve questions of costs of today and certify for counsel.  I will adjourn.

AT 2.34 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 23 NOVEMBER 2005