About 10 days ago The Sydney Morning Herald, sister publication of The Australian Financial Review, printed a compelling article detailing which silks have been lined up to represent the banks, superannuation funds and regulators in the Hayne royal commission.
It reads like a directory of rock-star lawyers.
High profile Melbourne silk Matt Collins, QC, who represented actress Rebel Wilson in the landmark defamation proceedings brought against Bauer Media, will act for ANZ Banking Group, as will Alan Archibald, who represented ANZ in its defence of the Australian Securities and Investment Commission's Federal Court action alleging the bank rigged the bank bills swap rate (BBSW), as well as the bank's successful High Court appeal of a class action relating to ATM fees.
Matthew Darke, QC, and John Sheahan, QC, are in Westpac's corner. Darke represented Westpac at the eight-week trial over its alleged rigging of the BBSW, while Sheahan has a reputation for complex commercial litigation, is a member of the Takeovers Panel and was senior counsel assisting the James Hardie inquiry in 2004. And so the list goes.
Under the draft terms of reference, the commission must look into misconduct by financial services entities and behaviour that falls short of community expectations.
If any consumers with grievances against financial institutions looked at that list, they might rightly shudder at these impressive resumes and wonder who will represent them at the bar table during discussions around home loans, car loans, credit cards and life and general insurance.
The tricky part is that consumer representation groups such as CHOICE and the Consumer Action Law Centre are unlikely to have the hundreds of thousands, or millions, of dollars lying about to pay your average Queen's counsel. The bill for a QC can be $10,000 a day. ASIC, apparently, has paid $2.15 million to sign up an external law firm until June 30.
Individuals who are asked to appear can apply to the government for funding for legal representation, but that does not extend to specialist groups.
Having high-level legal representation would be helpful for consumers overall. During the inevitable questioning of the banks and other financial institutions over lending practices and the like, a barrister who has been briefed by dedicated consumer groups would be in a position to ask probing questions, flesh out issues and put other issues into context.
"It's crucial that consumers have a seat at the bar table when, for example, bank executives are giving evidence and bank lending practices are being considered. It is consumers and consumer groups like CHOICE and the Consumer Action Law Centre that raised the issues that led to this royal commission and they are best placed to make sure that all the issues are fleshed out," says John Berrill, a super and insurance plaintiff lawyer and director of Berrill & Watson Lawyers in Melbourne.
Berrill & Watson represented James Kessel, who had his $1.1 million life insurance claim refused by CommInsure after a heart attack in 2014.
The problem is who would pay for such representation. The commission has a $75 million budget. Perhaps some of those funds – within reason – could be set aside to finance representation for consumer groups. It is, after all, in the government's, banks' and consumers' interests that the commission is effective at getting to the bottom of "the nature, extent and effect of misconduct by a financial services entity" and "any conduct, practices, behaviour or business activity by a financial services entity that falls below community standards and expectations".
Australian Bankers Association chief Anna Bligh told last year's AFR Banking & Wealth Summit that banking reform was taking too long and she wanted to accelerate the changes needed to rebuild the industry's trust with the community.
A royal commission where all sides are properly cross-examined and where all the relevant issues are raised might help her do just that.This article was first published by https://www.afr.com/Author: Sally Patten