Westpac Banking Corporation v Director of Public Prosecutions (Cth) & Anor

[2006] HCATrans 60

[2006] HCATrans 060

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)

Defendant

Summons

GLEESON CJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 15 FEBRUARY 2006, AT 9.31 AM

(Continued from 23/11/05)

Copyright in the High Court of Australia

MR P.J. DOWDY:   If it please the Court, I appear 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 Director.  (instructed by Director of Public Prosecutions (Commonwealth))

MR D.M.J. BENNETT, SC, Solicitor‑General for the Commonwealth of Australia:   If your Honour pleases, I appear for the Attorney-General of the Commonwealth intervening.  (instructed by Australian Government Solicitor)

HIS HONOUR:   I see that the parties have prepared a special case.

MS GORDON:   Yes, your Honour.

HIS HONOUR:   What is it proposed should happen now, Ms Gordon?

MS GORDON:   May we hand up some working orders that we have worked on this morning.  I apologise for the handwriting.

HIS HONOUR:   Thank you.

MS GORDON:   The first deal with the procedural matters for the filing of the case.  The second order deals with the dispensation, because your Honour will recall the form of the proceeding when it was instituted needed to be dealt with.  The third deals with the questions that are reserved for consideration.  Orders 4 to 6, which are on page 2, alter, by agreement, the usual order for the filing of submissions to give the parties more time.  I will explain why that is in a moment.  Finally, the order is costs reserved.

The parties seek more time for the filing of the submissions outside the usual order because the intervention of the Commonwealth has meant that the Director and the Commonwealth, in a sense, will try and streamline the submissions.

HIS HONOUR:   There is no problem about that, as far as I am concerned, because I would have in mind that this matter would be listed for the first sitting week in June.

MS GORDON:   Yes, your Honour.

HIS HONOUR:   It is a convenient time to slot it in, as it were, because we do not have much flexibility in June, and the second sitting week we go to Brisbane.  The Monday of that week is a public holiday and the Friday of

that week is special leave applications, so this seems like a convenient case to put in, and that would be before a Bench of five, during the first week of June.

MS GORDON:   If your Honour pleases.  Other than those, the orders are in the usual form.  If your Honour pleases.

HIS HONOUR:   Mr Dowdy, what do you say about that?

MR DOWDY:   Yes, we are happy with these orders, your Honour.  We have discussed them and we are happy with them.

HIS HONOUR:   Mr Solicitor.

MR BENNETT:   When your Honour says the first week in June, that is the 13th, 14th and 15th, I take it, which is the Tuesday to the Thursday, is the Canberra week.

HIS HONOUR:   Yes.  It would be one of those days, probably the first of them.

MR BENNETT:   Yes.  Your Honour said a Bench of five?

HIS HONOUR:   Yes.

MR BENNETT:   It is, of course, a constitutional matter.

HIS HONOUR:   Yes, I understand that, but it would be undesirable to sit a Bench of six and not possible to sit a Bench of seven, in the circumstances.

MR BENNETT:   Yes, I understand that.  Your Honour, there is one other minor matter.  It is possible that one or more of the parties or the intervener may wish to hand up material demonstrating the issue of matter of international concern.  We have always taken the view that constitutional facts can be proved in that way, notwithstanding Eastman.  The parties have agreed that if anyone wants to do that the stated case will be amended by consent to add the documents if the Court is unhappy with them simply being handed up and relied on.

HIS HONOUR:   That is something I wanted to raise with the parties and that is, what sort of facts do people think might be relevant to this?

MR BENNETT:   That at a conference in Ruritania lots of people got round and discussed proceeds of crime, that sort of fact.

HIS HONOUR:   I suppose it partly depends on you, Mr Dowdy.  What is the point of invalidity?  I think this has been explained to me before but if it has I have forgotten about it.

MR DOWDY:   Your Honour, the points of invalidity are basically summarised in our outline of submissions on the application for order to show cause.  We basically contend there is no constitutional power pursuant to which the sections we impugn – no constitutional power which supports them, in particular, in relation to a foreign indictable offence.  The points we rely on essentially are these sections purport to enforce a foreign penal law.  The effect of them is to forfeit property on the basis of merely a suspected foreign offence where no relevant action has taken place either by the person suspected of a crime within Australia and where the Bank it is not suggested has been guilty of any particular act within Australia of a penal nature.  It also effects a forfeiture of the Bank’s property on terms which are not just and we have a submission that the Commonwealth has no ‑ ‑ ‑

HIS HONOUR:   That last point has nothing to do with the fact that we are concerned with a foreign crime, has it?

MR DOWDY:   No, that is right, yes.  We say that the Commonwealth has, by these sections, simply sought on a purely arbitrary basis to seize property of the Bank on a basis that there has been some suspected contravention of a foreign penal law and the Commonwealth has no power to do that.

HIS HONOUR:   This is not a matter of external affairs?

MR DOWDY:   We say not, your Honour.  Obviously that is an issue that is going to loom large in the case.

HIS HONOUR:   Now, Mr Solicitor ‑ ‑ ‑

MR BENNETT:   My friend might like to give some thought to Foley v Hill when he talks about the Bank’s property.  There may be a question under the banking power, too, on the facts of this case, and the question as to whether one invokes that.  It is primarily, of course, external affairs power, Polyukhovich, XYZ and that line of cases.

HIS HONOUR:   External affairs on the basis of a matter external to Australia rather than a matter of international concern?

MR BENNETT:   Well, we would be putting the second as well.  I think there may be a treaty of some kind, although it is not a direct implementation, but there may be some treaty that indirectly refers to it.

HIS HONOUR:   Do you contemplate that it is to the second aspect, that is, a matter of international concern, that we might be interested in the information about people sitting around the table in some overseas destination worrying about this problem?

MR BENNETT:   Yes, your Honour, precisely.

HIS HONOUR:   That is what “concerned” means, does it, “worry”?

MR BENNETT:   Your Honour, there are various things it means but where countries have discussed matters and sat around and passed resolutions about it that is one of the ways one demonstrates that.

HIS HONOUR:   That is probably how the Commonwealth could prohibit smoking in restaurants.

MR BENNETT:   Yes.  Your Honour, there are dicta suggesting that one needs to have an element of internationality about the concern, not merely the other.

HIS HONOUR:   Apart from that sort of information, what other facts might be relevant?

MR BENNETT:   It is hard to imagine, your Honour, but there may be some minor facts relevant to the dispute to show the international ramifications of the litigation.  One of the parties, of course, is a claimant in the United Kingdom.  Another of the parties is a person who is likely to be in Singapore for some time.

HIS HONOUR:   Does this indicate that we are going to need to have another directions hearing in order to ensure that such facts as any party might want to rely on will be agreed?

MR BENNETT:   I would think not, your Honour.  As I said, the parties are relaxed about the sort of international material I had in mind and that will obviously be circulated and discussed by the parties prior to the hearing ‑ ‑ ‑

HIS HONOUR:   This timetable contemplates a certain time for written submissions.  Presumably, from those written submissions will emerge any disagreements about matters of fact, but could I indicate to all the parties that if it appears that there is likely to be any disagreement about any facts then I would not want to fix a hearing date before that had been sorted out.

MR DOWDY:   Your Honour, obviously, from our point of view, we would not wish to be obstructive about agreeing facts.  It may well be that it

is more the other parties who are suggesting that these facts ought to be in evidence.  We would simply ask that we be given in reasonably good time a statement or a summation of what the facts are that we are asked to agree to.

HIS HONOUR:   Do I gather that you would not be relying on any facts?

MR DOWDY:   As at present advised, your Honour, I do not think so.  I do not have the benefit at the moment of Mr Rares, who had led me and is obviously no longer leading me, and Mr Walker was unavailable today and I have not been able to speak to him, but I think it is probably more likely that it is my learned friends on either side who would be postulating facts.

MR BENNETT:   There is one other aspect of that which occurs to me, your Honour, and that is I noticed that Aspinalls is not a party at this stage.  It is a party to one of the proceedings referred to in the stated case.

HIS HONOUR:   They were actually removed from these proceedings, were they not?

MR DOWDY:   No, that was the Official Receiver.

HIS HONOUR:   The Official Receiver in Bankruptcy.

MR BENNETT:   Yes.  This is really a matter for my learned friend, but on the basis that the proceedings are, in a sense, in substance an interpleader by my learned friend who has a fund and a number of claimants on it.  One assumes that his concern is to make sure he does not have to pay twice.  One would have thought he would want Aspinalls bound by the constitutional decision.  It is a matter for my friend, but it may well be desirable to make them a party.  There are large sums of money involved and they have proceedings on foot.  That should not delay the proceedings.

HIS HONOUR:   Who knows?  If Aspinalls are joined in, they might have their own ideas about the way the proceedings should go ahead.

MR BENNETT:   They might, your Honour.  One would have thought their interests would be, for practical purposes, identical to that of the plaintiff, so far as the constitutional issue is concerned.

HIS HONOUR:   What do you say about that, Mr Dowdy?

MR DOWDY:   Aspinalls certainly know about the case and we have kept them apprised.  They have never indicated any interest in intervening or becoming a party, your Honour, but it is a point that I have not had an opportunity to consider.

HIS HONOUR:   Then I am certainly not going to fix a date for hearing if there is any question about the constitution of the proceedings or any possibility of outstanding issues of fact. 

What I will do is make orders in the form of the document initialled by me dated today and placed with the papers and I will direct that each party on or before 15 March 2006 serve on the other parties a document setting out any facts that the party desires to rely on in support of its arguments.  I will list the matter for a further directions hearing at 2.15 pm on Thursday, 16 March 2006 and I will indicate that if there are no matters of dispute or contention between the parties I will not expect the personal attendance of senior counsel.  On that occasion one of the questions I will ask is whether or not there is any proposal to alter the constitution of the proceedings in terms of parties. 

Is there anything more I need to deal with today?

MS GORDON:   One more thing, your Honour.  In paragraph 1 of the orders there needs to be a date inserted and what we propose is 17 February 2006, which is this Friday.

HIS HONOUR:   Yes, I have done that.

MS GORDON:   If your Honour pleases.

MR DOWDY:   May it please the Court.

HIS HONOUR:   I will certify for counsel.  Is there anything else I need to do today? 

MS GORDON:   No, your Honour.

HIS HONOUR:   Then I will indicate that unless something emerges between now and 16 March that indicates that it would be inappropriate to do so, it looks as though the matter will be heard during the first sitting week in June, and I will stand the matter over until 2.15 pm on 16 March 2006.

AT 9.47 AM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 16 MARCH 2006