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

The High Court of Australia heard an application by Westpac Securities Administration Ltd and BT Funds Management Ltd (the applicants) for suppression orders against the Australian Securities and Investments Commission (ASIC). The dispute concerned the disclosure of personal information relating to certain customers of Westpac, which had been included in materials filed with the Court in proceedings concerning whether Westpac had provided personal financial product advice within the meaning of section 766B(3)(b) of the Corporations Act. The personal information included transcripts of customer calls and correspondence detailing superannuation accounts, which the applicants argued could be used to commit financial fraud or identity theft.

The Court was required to determine the legal basis for granting suppression orders and the appropriate scope of those orders. Specifically, the applicants sought to rely on section 77RE(1)(a) of the Judiciary Act 1903 (Cth), arguing that the orders were necessary to prevent prejudice to the proper administration of justice (section 77RF(1)(a)), and also on the ground that the orders were necessary to protect the safety of the applicants' customers (section 77RF(1)(c)). The Court also considered the precise wording and structure of the proposed orders to ensure clarity and effectiveness in redacting and prohibiting the disclosure of the identified personal information.

The Court reasoned that suppression orders could be made under section 77RE(1)(a) of the Judiciary Act, supported by the grounds in sections 77RF(1)(a) and (1)(c). The applicants contended that disclosure of the personal information would prejudice the administration of justice by potentially exposing customers to harm and by undermining the regulatory function of ASIC, which had obtained the information under its compulsory powers. The Court accepted that the orders were necessary to protect the safety of customers and to prevent prejudice to the administration of justice. The Court also refined the proposed orders to clearly define the "Personal Information" to be suppressed, including specific details such as tax file numbers, names, addresses, dates of birth, phone numbers, superannuation account numbers, email addresses, and the identity of employers, and stipulated that this information would be used only for the purposes of the proceeding and disclosed only to legal representatives, and would not be available for public inspection.

The Court made orders pursuant to section 77RE(1)(a) of the Judiciary Act, on the grounds specified in sections 77RF(1)(a) and (1)(c), prohibiting the disclosure of the defined "Personal Information" listed in a schedule. The orders further stipulated that the Personal Information could be used only for the purposes of the proceeding, disclosed only to the parties' legal representatives, and would not be available for public inspection. Additionally, the applicants were ordered to file and serve redacted versions of the relevant court documents by 12 March 2021.