The latest on the Royal Commission

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By Darren James, Partner

First hearing dates and topics announced

The Commission has confirmed that the first round of hearings will be held in Melbourne between 13 and 23 March 2018.

During this round, the Commission intends to deal with consumer lending across 6 areas. Each area will be examined with by reference to specific case studies across particular financial institutions ranging from large banks to mortgage brokers.

The 6 areas, and what will be looked at within each of them, are:

  • Residential mortgages: fraudulent loan applications, fraudulent brokers and broker accreditation and arrangements.
  • Car finance: car finance practices.
  • Credit cards: unsuitable credit card limit increases and the imposition of international transaction fees.
  • Add-on insurance products: credit insurance in connection with home loans, personal loans and credit cards.
  • Credit offers: unsuitable pre-approved overdraft offers.
  • Account administration: administration errors, automated system failures.

A number of consumers will give evidence.  A consumer advocacy group representative will also give evidence. The identity of these witnesses has not yet been publicly disclosed by the Commission.

Appearing at the Commission

To assist in the effective and efficient management of the Commission’s business, the Commission has announced that persons and entities who wish to appear before it and be heard, need the Commission’s leave to appear to do so.

The Commission will grant leave to appear if a person or entity has “a direct or substantial interest in the hearing of a case study or the subject of the inquiry”.

This leave will generally be granted if the person or entity has been summonsed to give evidence in the Commission, is the subject of an inquiry to be undertaken by the Commission, or may be the subject of an adverse allegation before the Commission.

Under the “direct or substantial interest” test, the consumers and the financial services entities directly involved in the case studies to be examined by the Commission, should routinely be granted leave.

In cases where personnel from a financial services entity wish or need to be represented separately from the entity, they will likely also routinely be granted leave if they were centrally involved in the conduct to which the case study relates or might be the subject of an adverse allegation in the Commission.

Interest or action groups who want to be heard about the general issues to be examined by the Commission through particular case studies, but who have no direct historical role in those case studies, may struggle to meet the Commission’s “direct or substantial interest” test in this round of hearings.

The Commission may, however, determine to provide such groups with an opportunity to appear and make submissions on specific issues rather than sample cases, at a later point in time.

When granting leave to appear, the Commission has indicated that it will not do so on an unconditional basis.

Leave to appear in the Commission, when granted, will be confined to particular case studies or aspects of the inquiry, and importantly, will be “subject to conditions, such as limiting the particular topics or issues” upon which examination or cross-examination of witnesses may occur.

The Commission has published a guideline about leave to appear (available here), and an application for those who wish to seek leave to appear (available here).

Applications for leave in respect the first round of hearings must be received by 5pm on Friday 2 March 2018.

260% increase in number of public submissions received

Since the first hearing, the Commission has continued to receive submissions from the public through the online portal it established.

Not unsurprisingly, submissions have continued to roll in.

In the period from 22 January when the portal went live, up until 12 February, the Commission received 385 submissions. In the two or so weeks since then, the number of submissions ballooned by over 260% to 1387.

Those submissions mostly concerned personal financial products, superannuation products and mortgage brokers. By industry, 63% concern the banking industry, 13% concern superannuation and 6% life insurance.

Counsel Assisting

The Commission yesterday announced some changes to the Counsel Assisting team.

Michael Hodge QC and Albert Dinelli have been appointed and will join the existing team of Rowena Orr QC, Eloise Dias and Mark Costello.

Mr Hodge QC is an experienced commercial silk and previously had roles as Counsel Assisting in several prominent commissions of inquiry in Queensland.

Michael Borski QC has withdrawn from his role as Counsel Assisting for “personal reasons unconnected with the Commission”.

This article is of a general, informational nature. It does not does not constitute legal or professional advice by the author or by Mills Oakley, and must not be relied on as such.

For further information, please do not hesitate to contact us.

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