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

Westpac Banking Corporation (Westpac) sought judicial review of a decision by the Director of Public Prosecutions (Cth) (DPP) to refuse to grant a certificate under s 19(1) of the *Proceeds of Crime Act 1987* (Cth) (the Act). The DPP's refusal related to an application by Westpac for a certificate to enable it to pay a sum of money to a third party, which Westpac believed was necessary to avoid potential liability for contempt of court. The matter came before Gleeson CJ in the original jurisdiction of the High Court.

The central legal issue before the Court was whether the DPP had erred in law in refusing to grant the certificate. Specifically, the Court had to consider the scope of the DPP's discretion under s 19(1) of the Act, which permits the DPP to grant a certificate if satisfied that a payment is "necessary for the purpose of avoiding a contravention of any law of the Commonwealth or of a State or Territory". Westpac contended that the DPP's refusal was unreasonable and that the DPP had failed to properly consider the risk of Westpac being found in contempt of court if it did not make the payment.

Gleeson CJ reasoned that the DPP's discretion under s 19(1) was not unfettered and required the DPP to be satisfied that the payment was *necessary* to avoid a contravention of law. His Honour found that while a risk of contempt proceedings existed, it did not automatically render the payment "necessary" in the sense contemplated by the Act. The DPP was entitled to consider the likelihood and seriousness of such proceedings, and the availability of alternative courses of action. The Chief Justice concluded that the DPP had not erred in law in its assessment of the necessity of the payment and had properly exercised its discretion.

Consequently, Gleeson CJ dismissed Westpac's application for judicial review.