By Lisa-Marie McKechnie, Partner, and Ahmed Rizk, Lawyer
As expected, the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (“Commission”) has continued its practice of releasing guidelines to assist applicants/potential applicants and the industry more widely in understanding how the Commission will be run. The Commission has recently released Practice Guideline 3 which sets out how the Commission will deal with a number of evidentiary issues including leave to appear, witnesses, cross-examination and tendering of documents.
A person has no automatic right to appear before the Commission, and must instead be granted leave to appear. The Commission will ordinarily grant an applicant leave to appear in circumstances where the applicant has a direct or substantial interest in the hearing of a case study or the subject of inquiry, and:
a) has been summonsed to give evidence;
b) is the subject of an inquiry to be undertaken; or
c) may be the subject of an adverse allegation.
Persons who have been granted leave to appear before the Commission may be represented by a legal representative. Leave to appear may be varied or withdrawn by the Commissioner at any time.
Written applications for leave to appear are invited from the Commission at the time the scope of a hearing is published from persons who believe that they have a direct or substantial interest in the scope of a particular public hearing.
Applications for leave must follow a set form that will soon be made available on the Commission website accompanied with short submissions to supplement the application. The form and the submission should be lodged with the Commission by emailing it to FSRCSolicitor@royalcommission.gov.au. The application will ordinarily be dealt with on the papers in advance of each hearing; however, an applicant may be required to appear before the Commission for further consideration of their application.
It is unlikely that the Commission will grant any person unconditional leave to appear and most grants of leave to appear will be confined, with limits to typically be imposed on the particular topics or issues upon which the person may examine or cross-examine a witness.
Where a person has been granted leave to appear, they are entitled to participate in the relevant public hearing and may:
a) apply to have evidence tendered or heard;
b) apply for leave to cross-examine a witness; and
c) make submissions about the findings available to the Commission following the relevant hearing.
The Commissioner may determine the nature and extent of any other conditions attaching to any grant of leave taking into account all relevant considerations, including the individual circumstances of the applicant and the contents of their application for leave.
Counsel Assisting the Commission will contact witnesses from whom the Commission wishes to obtain evidence. As a general rule, it is expected that the Commission will receive the evidence of each witness to be called in the form of a written statement.
Witnesses may, however, be called to give evidence at a hearing and if so, they will be issued with a summons to attend and appropriate notice of the time that the Commission will call upon the summons. Where this occurs, witnesses will present and adopt their witness statement as their evidence-in-chief, to be supplemented where necessary.
Where a witness is not legally represented, counsel and the solicitors assisting the Commission will prepare that individual’s witness statement. However, legally represented individuals are expected to have their witness statements prepared by their legal representatives.
There will be limited opportunity for witnesses to be cross-examined and will be by leave only. No general, open-ended right of cross-examination will be given to any person, but leave may be provided where a person has sufficient interest to cross-examine the witness, as determined by the purpose of the cross-examination and the issues to be canvassed. In making an application for leave to cross-examine, the applicant will be required to provide the Commission with copies of any documents to which they propose to take the witness.
A number of limits have been imposed by the Commission on cross-examination, with the practice guideline noting that:
a) repetitive questioning or duplication is not permitted. Where multiple persons are interested in cross-examining a witness on the same issues, these parties are to consult before the witness is called to reach an agreement on how to proceed with the cross-examination. If no agreement is reached, the Commissioner will direct the order;
b) cross-examination will be limited to the matters in issue, and may otherwise be restricted by the Commissioner;
c) a copy of any document proposed to be put to a witness must be provided to Counsel Assisting the Commission as soon as possible after a decision is made to use the document and in all cases prior to the date of the hearing at which it is intended to be used;
d) as the Commission is conducting an inquiry, and not a judicial proceeding, cross-examination that raises collateral matters going only to credit will not be permitted; and
e) cross-examination will be permitted only to the extent that the Commissioner believes it will assist him in his task of investigating and reporting on the subject matter of the terms of reference.
Before the commencement of a public hearing, each person granted leave to appear at that hearing may be given confidential access to documents that are likely to be tendered as exhibits at the public hearing. This process is designed to enable a person to identify whether they wish to apply for a suppression order in relation to a document or any part of a document. Generally, a document of this kind will be subject to a direction made by the Commissioner that it not be published until the point at which it is tendered.
Subject to the Commissioner’s control, Counsel Assisting the Commission will typically be responsible for determining which and when documents are tendered. Additional documents may be tendered by Counsel Assisting the Commission during the course of a public hearing, whilst a process is also in place for a person to seek to have a document placed before a public hearing. An application to tender a document may only be made directly to the Commissioner if this process has been completed and Counsel Assisting the Commission has refused to tender a document.
Watch this space for further updates as each Practice Guideline is released.
For further information, please do not hesitate to contact:
Lisa-Marie McKechnie | Partner
T: +61 2 8289 5857
T: +61 2 8289 5814