Westpac Securities Administration Ltd & Anor v Australian Securities and Investments Commission

[2021] HCATrans 38

[2021] HCATrans 038

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S69 of 2020

B e t w e e n -

WESTPAC SECURITIES ADMINISTRATION LTD

First Appellant

BT FUNDS MANAGEMENT LTD

Second Appellant

and

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Respondent

Application for suppression orders

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON TUESDAY, 9 MARCH 2021, AT 9.25 AM

Copyright in the High Court of Australia

MS E.R. DOYLE‑MARKWICK:   May it please the Court, I appear for the appellants, and the applicants on the motion, Westpac and BT Funds Management.  (instructed by Allens)

MR T.J. KANE:   May it please the Court, I appear for the respondent.  (instructed by Australian Securities and Investments Commission)

HER HONOUR:   Mr Kane, is your position that this is by consent or you do not take a position – I could not quite work out from the latest email I received from the Deputy Registrar.

MR KANE:   We do not oppose the orders being made, your Honour, obviously subject to the Court being satisfied that the orders should be made on Westpac’s application.

HER HONOUR:   Thank you very much.  Ms Doyle‑Markwick.

MS DOYLE‑MARKWICK:   Your Honour, the application relates to the materials before the Court in Westpac Securities Administration v ASIC [2021] HCA 3. The proceedings concern the question whether Westpac, in giving financial product advice to certain customers, had provided personal advice to them within the meaning of section 766B(3)(b) of the Corporations Act.

HER HONOUR:   Ms Doyle‑Markwick, I think you can take it that I am aware of the decision and I know what it is about, and I understand the sort of information that is described in the affidavit as “Personal Information”.

MS DOYLE‑MARKWICK:   Thank you, your Honour.  The only purpose in providing that limited background was to say that the materials before the Court for that purpose included two kinds of information, firstly transcripts of calls between Westpac and the customers in which the customers were carefully identified, and secondly correspondence about and containing details of the customers’ superannuation accounts.  Those details could be, and were indeed, used by the Bank to identify the customers potentially to a level that would allow a person accessing that information to commit financial fraud or identity theft. 

So, to avoid that risk the applicant seeks suppression orders substantially in the terms set out in the application filed 8 December 2020.  In support of the orders sought the applicants rely on the affidavit of Christopher Prestwich which was also filed on 8 December 2020.  Does your Honour have a copy of that?

HER HONOUR:   Yes, and I have read it, thank you.

MS DOYLE‑MARKWICK:   Thank you, your Honour.  A set of proposed orders was provided to your Honour’s chambers earlier this morning, I understand.  Does your Honour have a copy of those?

HER HONOUR:   Yes.  Can I raise two questions about those, please?

MS DOYLE‑MARKWICK:   Yes, your Honour.

HER HONOUR:   In relation to the way in which they are structured – can I deal with the power question first? It is common ground, I think, that the power is under section 77RE(1)(a).

MS DOYLE‑MARKWICK:   I do not understand that to be in issue.

HER HONOUR:   Thank you.  Then, if you come over to 77RF, which are the grounds, is it truly – I did not understand the application was (a) – is it?  Is it not just (1)(c), that they are necessary to protect the safety of the applicants’ customers or does it not matter?

MS DOYLE‑MARKWICK:   Your Honour, the application can be put on either ground, in my submission.  Does your Honour wish me to explain why we have also included (1)(a)?

HER HONOUR:   Yes, please.  That was the subject of your application, as I recall it.

MS DOYLE‑MARKWICK:   Yes, your Honour.  The way the application was framed initially was under (1)(c).  The reason for putting it also under (1)(a) is that the way the Court has interpreted the protection of the administration of justice is to say that not only does it include the interest in open justice but also restraints upon disclosure where that would prejudice the proper exercise of the adjudicative function. 

In my submission, that ground is relevant for two reasons: firstly, Westpac has put this information, this personal information of its customers before the High Court for the purpose of allowing the Court to reach a determination based on all of the materials and, in doing so, it ought not be, as it were – its customers ought not be punished by having their personal information disclosed to the world; and, secondly, ASIC in obtaining this information did so under section 33 of the ASIC Act using its compulsive powers. Again, it would be, in my submission, inimical to the administration of justice if, in pursuing its regulatory function, the regulator in fact prejudiced the personal information of the consumers it seeks to protect.

HER HONOUR:   I see.  Can I raise one other question with you, and that concerns the way in which the order itself is structured?  If paragraph 1 reads, in a sense, in the way which you propose but the schedule itself identifies and describes the documents – I withdraw that – the Personal Information that is not to be disclosed in these terms and this would be the schedule, the sections of the Core Appeal Book and the Appellants’ Book of Further Materials containing references to the Tax File Number and other identifying personal information, including the name, address, date of birth, phone number, BT superannuation account number, and email address, together defined as “Personal information of customers 1 to 15”, as a thing that is in the schedule, and I have done that for two reasons. 

One is it picks up the definition from the affidavit of Mr Prestwich that means the orders stands on its own in complete terms and, second, it would then apply across the board to customers 1 to 15.  If that is adopted, and I think it may be the preferable point of view so that everyone understands what is not to be the subject of disclosure with particularity, then paragraph 1 of the orders might read, after what I will call the first four lines of your proposed order:  “An order is made prohibiting the disclosure of the Personal Information listed in the schedule to these orders, such and until further order the Personal Information (a), (b) and (c)”.

MS DOYLE‑MARKWICK:   Yes, your Honour, I would be content with that.  Would the Court still require a copy of the Core Appeal Book and the Appellants’ Book of Further Materials that was redacted in that way?

HER HONOUR:   I think that is necessary and I think paragraph 2 then becomes:  “The appellants are to file and serve versions of both those books which redact the parts of the documents containing the Personal Information, the subject of these orders” so that if, for any reason, someone wishes to inspect that material then they would look at the redacted version.

MS DOYLE‑MARKWICK:   Yes, your Honour, I would be content with that course.

HER HONOUR:   Mr Kane, do you have anything to say in relation to that proposal?

MR KANE:   No.  We would be content with that course as well, your Honour.

HER HONOUR:   Thank you.  What I propose to do is to read out the proposed orders and I will ask if there are any comments – I will take it slowly so everyone can write them down if they wish to and then I will announce them. 

Sorry, one other matter I forgot to raise with you, Ms Doyle‑Markwick, and that is I think then it becomes that the reasons for the order – that is the two grounds that will be necessary are not alternatives, are they – on your submission, both are relied upon.  They are not true alternatives; there are actually two reasons given.

MS DOYLE‑MARKWICK:   Yes, your Honour.  They are only alternative in the sense that in my submission it would not be necessary to satisfy both but, in fact, we do. 

HER HONOUR:   Thank you.  The order I propose is as follows:

1.Pursuant to section 77RE(1)(a) of the Judiciary Act 1903 (Cth), and on the ground in section 77RF(1)(a) that the orders are necessary to prevent prejudice to the proper administration of justice and, further, on the ground in section 77RF(1)(c) that the orders are necessary to protect the safety of the applicants’ customers, the Personal Information listed in the Schedule to these orders be prohibited from disclosure, and until further order, the Personal Information:

(a)      may be used only for the purposes of this proceeding;

(b)      may be disclosed only to the parties’ legal representatives; and

(c)      will not be available for public inspection.

2.By 12 March 2021, the applicants are to file and serve versions of the Core Appeal Book and the Appellants’ Book of Further Materials which redact the Personal Information.

The schedule, I think, would then read: 

1.The sections of the Core Appeal Book and the Appellants’ Book of Further Materials containing references to the Tax File Number and other identifying personal information, including the name, address, date of birth, phone number, BT superannuation account number, and email address, together defined as “Personal Information”, of customers 1 to 15.

MS DOYLE‑MARKWICK:   Could I just raise one matter, your Honour?  Your Honour uses the language of “including” and so this may not be an issue, but I just note that one of the matters proposed to be redacted was the identity of the employer of the customer.  I take it would be within the scope of these orders for information of that kind also to be redacted?

HER HONOUR:   I have taken that definition from Mr Prestwich’s affidavit.

MS DOYLE‑MARKWICK:   Yes, your Honour.  I just note as a matter of substance, in the material redacted in the exhibits to Mr Prestwich’s affidavit, additional information was also excluded.

HER HONOUR:   I think what I will do – I will adjust it, so it reads “phone number, BT superannuation account number, email address, and identity of employer”.

MS DOYLE‑MARKWICK:   If it please the Court.

HER HONOUR:   Is that helpful?

MS DOYLE‑MARKWICK:   Yes, your Honour.

HER HONOUR:   Are there any other classes of personal information you are aware of?

MS DOYLE‑MARKWICK:   No, there are not.

HER HONOUR:   Thank you.  Mr Kane, is that all right with you?

MR KANE:   Yes, thank you, your Honour.

HER HONOUR:   All right.  I will make orders in those terms.  I thank both of you for your assistance.

Adjourn the Court.

AT 9.37 AM THE MATTER WAS ADJOURNED