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

[2005] HCATrans 985

[2005] HCATrans 985

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 WEDNESDAY, 23 NOVEMBER 2005, AT 2.18 PM

(Continued from 3/11/05)

Copyright in the High Court of Australia

MR S.D. RARES, SC:   If your Honour pleases, I appear with my learned friend, MR P.J. DOWDY, for the plaintiff.  (instructed by Henry Davis York)

MS M.M. GORDON, SC:   If the Court pleases, 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:   If the Court pleases, 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 Attorney‑General for the Commonwealth.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Rares.

MR RARES:   Your Honour, in light of the suggestion that was made on the last occasion, the parties have agreed about the form of an amended application for an order to show cause and a special case under rule 27.08.

HIS HONOUR:   What is the attitude of each of the parties to the proposal that I should state a special case?

MR RARES:   I think we are all content with what is in the documents that were sent up to the Court.

HIS HONOUR:   What is your attitude, Ms Gordon?

MS GORDON:   We are content for the matter to proceed on the papers that have been prepared and, as we understand, provided to your Honour.

HIS HONOUR:   Thank you.  Mr Sest.

MR SEST:   Your Honour, we are content, but can I just say that that is because we are removed as a party and so therefore our contentment is subject to that.

HIS HONOUR:   Mr Burmester.

MR BURMESTER:   We also support the matter proceeding on the papers as filed with you.

HIS HONOUR:   So this is not a stated case by me; this is a stated case agreed by the parties.

MR RARES:   Yes, your Honour.

HIS HONOUR:   Could I make a comment or two on the form of the stated case.  My comments may result from the fact that I am overlooking something.  I wonder why it is necessary to have so much detail in the stated case about other proceedings and I also wonder why the stated case says nothing about the present proceedings in which the case is stated.  Why does the stated case go into that level of detail that appears in paragraphs 9, 11, 12, 13, 14, 15, 16, 17 and so forth?

Would it not be sufficient to just say in a single paragraph or two paragraphs that there are other proceedings involving other parties on foot in other courts relating to various aspects of moneys in this account but they are not directly the subject of these proceedings?

MR RARES:   For our purposes, we certainly would see no problem about doing that.  I think the concern was that the Court might have been interested to have the actual recitation of those facts, so my learned friends and I discussed that and that thought governed it but ‑ ‑ ‑

HIS HONOUR:   Unless I am overlooking it, there is nothing in the stated case that explains the nature of these proceedings, is there?

MR RARES:   The nature of these proceedings comes out of the fact that Mr Chia was charged with criminal offences in Singapore.

HIS HONOUR:   No, I am sorry.  All I am saying is that having gone into surprising detail about the various other proceedings that are going on around the country, the stated case does not say what these proceedings are.  The case does not say, does it, these proceedings have been commenced by Westpac against the Director of Public Prosecutions seeking a declaration that, as appears – seeking declarations of the invalidity?

MR RARES:   I think your Honour is absolutely correct that we have overlooked that.

HIS HONOUR:   Why do you not just do that?  It really is ultimately a matter for you, but why do you not have a look at the question of whether it is possible to give a little less information about those various other proceedings involving Aspinalls.  Aspinalls are not going to turn up in the High Court, are they?

MR RARES:   No.

HIS HONOUR:   Who is Mr Sest’s client?

MR RARES:   He is the Official Trustee.

HIS HONOUR:   And Mr Sest’s client is not going to turn up there either?

MR RARES:   No.

HIS HONOUR:   So it just seemed to me to add perhaps unnecessary complication to refer in the special case to Aspinalls or to the detail of the proceedings involving Aspinalls.  It might be sufficient to say in a general way that there have been on foot at various times and there are still are on foot in various courts proceedings involving particular parts of the amount involved.  I am right in thinking, am I not, that Aspinalls’ claim is only to part of the amount to the credit of the account?

MR RARES:   In essence, what happened was that in September the Federal Police liaised with us.  There was $A30 million in the account.  We remitted something like about $22 million and they said, “Don’t pay the cheques”.  We waited.  The proceeds of crime order was taken out and the balance of the account basically was there to meet the two cheques in the event that we had to meet them, so Aspinalls came and sued us later on the cheques, or in respect of the cheques.

The history was put in because there was a concern the Court might feel it needed to have the history, but the essence of the case is simply that the question arises whether or not the Commonwealth can have a law that says because there is a foreign penal indictable offence suspected to have been committed you can get a restraining order getting the money and then because there is a restraining order you then get the forfeiture order.

HIS HONOUR:   Yes.  By the way, what is the problem about that?

MR RARES:   The problem is there is no head of power to seize a foreign person’s property or a national’s property or an Australian subject’s property ‑ ‑ ‑

HIS HONOUR:   Mr Burmester, will you be relying on the external affairs power?

MR BURMESTER:   Yes, your Honour.  That would certainly be the heart of our argument.

HIS HONOUR:   Money laundering and disposition of proceeds of crime, I presume, is a matter of international concern?

MR BURMESTER:   Yes.

HIS HONOUR:   And the subject of international agreements?

MR BURMESTER:   These are proceeds of crime conducted overseas as well, as I understand, so there would be that aspect.

HIS HONOUR:   So there would be an interesting argument about the external affairs power, just for a start, I imagine.

MR RARES:    Yes, and the fact that the Mutual Assistance Act specifically enacts the treaties that cover those very topics, your Honour, and excludes section 19 from its operation.

HIS HONOUR:   All right.  In view of the agreement between the parties, as far as I am concerned, I am content for the matter to proceed on that basis.  I would, however, suggest that the parties have another look at the form of the case and I suppose we had better arrange for the matter to be listed before me once more before it is actually listed for hearing before a Full Court.

MR RARES:   The only other outstanding thing is Mr Sest opposes having the costs reserved at this stage.  He wants a costs order in his favour, as we understand it.  Our position is simply this, that if the Court were to find in our favour that the relevant invalidity was established, then in the proceedings below Mr Sest’s client would have to refund the money to us and pay our costs.  If, on the other hand, we lose here, we obviously pay everybody’s costs.  So that we would say that the costs in relation to his client, although we have now dropped that – and we have to point out to your Honour that because we have dropped the mandamus and the prohibition we are outside Part 25 of the Rules and we need a dispensation about that.

HIS HONOUR:   Which head of original jurisdiction are these proceedings brought under in Chapter III?

MR RARES:   They are currently in 75(v), I suppose, because the Commonwealth is a party.

HIS HONOUR:   This was the advantage of having a statement of claim.  You used to have to begin your statement of claim by identifying the provision under which the Court had jurisdiction.

MR RARES:   Your Honour, we originally had 75(v).

HIS HONOUR:   That has gone now.  This is one of the reasons, it occurred to me, that the case ought to refer to these proceedings and

perhaps contain an indication of the head of original jurisdiction that is invoked in these proceedings.

MR RARES:   Yes.  I suppose 75(iii) is a pretty clear one.

HIS HONOUR:   What do you say, Mr Burmester, about the head of original jurisdiction that is invoked in these proceedings?

MR BURMESTER: Your Honour, I think it is probably a matter arising under the Constitution and, while we were happy to proceed on this amended application, it did occur to us that maybe a statement of claim or an alternative originating application would be appropriate – it would not need to differ in substance – and that might, as your Honour suggests, more clearly indicate that the source of jurisdiction is the fact that there is a matter arising under the Constitution. That would put one quite clearly then in Part 27 of the Rules and the provision is there for questions of law to be stated.

HIS HONOUR:   You might give consideration, Mr Rares, to further amending the application in order to identify the head of original jurisdiction invoked and I will say quite categorically that you should amend the case stated in order to indicate the nature of the proceedings in which the case is stated because the Court dealing with the case stated will not have before it the amended application.

MR RARES:   We will attend to those things and I think we will take on board what your Honour said about simplifying the detail of the other matters and ‑ ‑ ‑

HIS HONOUR:   I suppose there will have to be notices under section 78B?

MR RARES:   Section 78B, yes, your Honour, we will have to do that.

HIS HONOUR:   Now, on the question of costs, Mr Sest?

MR SEST:   Yes, your Honour.  The position is, your Honour, that the case to go forward, whether it be amended in the manner your Honour suggests or not, will not involve my client.  That is clear from the fact that my client has been dropped as a party and no allegations are made against it and that orders are proposed that it cease to be a party under rule 21.  In my submission, ceasing to be a party is as final as we can get.  We are entitled to our costs because we were incorrectly brought here.  The question of what costs may or may not be ordered below is irrelevant, in my submission, to the question of the plaintiff having brought my client to these proceedings to this date.

HIS HONOUR:   Mr Rares, your client is just, in effect, discontinuing proceedings against Mr Sest’s client, is it not?

MR RARES:   Yes, your Honour.

HIS HONOUR:   Why should not the usual consequences as to costs that attend the discontinuance follow?

MR RARES:   I cannot say anything more than I have said to your Honour about that.

HIS HONOUR:   All right.  I will order that the plaintiff pay the costs of the second defendant – is that the appropriate description of your client, Mr Sest?

MR SEST:   It is, your Honour.

HIS HONOUR:   The plaintiff pay the costs of the second defendant.

MR RARES:   Would your Honour grant leave to us to discontinue?  We will reformulate this stated case and ‑ ‑ ‑

HIS HONOUR:   The plaintiff will have leave to discontinue its proceedings against the second defendant and the plaintiff will pay the costs of the second defendant.

MR SEST:   If your Honour please.

MR RARES:   Then we need to bring it back to your Honour.

HIS HONOUR:   Otherwise, I will reserve questions of costs of today’s proceedings and certify for counsel in all cases, including Mr Sest’s case.

MR SEST:   Thank you, your Honour.

HIS HONOUR:   Would you be looking at a date in the new term, Mr Rares, for mention?

MR RARES:   Yes, your Honour.  Hopefully, we can do it.

HIS HONOUR:   All right.  We have already settled the list for February, anyway, so you would not get on in February.  Then by arrangement between the parties and the Court this matter will be fixed at a future date for further mention before me just for the purpose of checking that the case is ready to proceed before the Full Court.  Is there anything else I need to deal with?

MS GORDON:   No, your Honour.

MR SEST:   No, your Honour.

HIS HONOUR:   Very well.  I will adjourn.

AT 2.33 PM THE MATTER WAS ADJOURNED