Australian Securities and Investments Commission v Westpac Banking Corporation (Penalty Hearing) [2024] FCA 52

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Westpac Banking Corporation (Penalty Hearing) [2024] FCA 52 File number: NSD 386 of 2021

Judgment of: LEE J

Date of judgment: 31 January 2024

Catchwords: CORPORATIONS – Westpac Banking Corporation (Westpac) – largest interest rate swap deal in Australian financial market history – where plaintiff (ASIC) alleges Westpac contravened various statutory norms under Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and Corporations Act 2001 (Cth) (Corporations Act) – insider trading – unconscionable conduct – failure to comply with AFSL obligations CORPORATIONS – pecuniary penalties – declarations of contraventions – where penalty agreed – characterisation of complex financial transactions – where parties propose compliance programme – whether orders should be made for appointment of independent referee – whether further order under s 1101B(1) of the Corporations Act should be made – penalty imposed – declarations and other orders made

Legislation: Australian Securities and Investments Commission Act 2001 (Cth) ss 91, 12BAB(1), 12CB, 12GBA(1), 12GLA(2)(b) Corporations Act 2001 (Cth) ss 912A, 912A(1)(a), 912A(1)(aa), 1101B(1) Evidence Act 1995 (Cth) s 191 Federal Court of Australia Act 1976 (Cth) s 21

Cases cited: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 96 ALJR 426 Australian Securities and Investments Commission v Westpac Banking Corporation (No 3) [2018] FCA 1701; (2018) 131 ACSR 585

Division: General Division