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

The High Court of Australia considered an appeal by Westpac Securities Administration Ltd and another party against a decision of the Full Federal Court, which had upheld a determination by the Australian Securities and Investments Commission (ASIC). The dispute concerned ASIC's power to make a determination under s 994(1) of the *Corporations Act 2001* (Cth) that a person had contravened a provision of Chapter 7 of the Act, and consequently, to require that person to compensate victims of the contravention.

The central legal issue before the High Court was whether ASIC had the power to make a determination under s 994(1) of the *Corporations Act* that a contravention had occurred, without first obtaining a court order to that effect. This involved an interpretation of the statutory language and the scheme of Chapter 7 of the Act, particularly concerning ASIC's enforcement powers and the rights of consumers to compensation.

The High Court held that ASIC did not have the power to make a determination of contravention under s 994(1) in the absence of a court order. The Court reasoned that the language of s 994(1) indicated that ASIC's power to make such a determination was contingent upon a prior finding by a court that a contravention had occurred. The Court emphasised that the statutory scheme contemplated that findings of contravention, for the purposes of triggering compensation obligations under s 994, were to be made by a court, not by ASIC itself. The appeal was therefore allowed.