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BFCSA: Batting for the banks: top silks get ready for royal commission

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Batting for the banks: top silks get ready for royal commission

Sydney Morning HeraldFeb 10 2018 - 1:03am

Sarah Danckert

 

The biggest legal show in the country is about to open in Melbourne when former High Court justice Kenneth Hayne’s Financial Services Royal Commission (FSRC) begins its public hearings next week.

And there's no shortage of stars given the raft of top QCs required to serve the sheer number of financial institutions involved in the short-tenured 12 month inquiry.

The big financial services outfits have set up ‘war rooms’ within their respective headquarters where executives and teams of inhouse and external lawyers will watch the proceedings on a live feed.

The list of big name silks - the sort of barristers that often charge five figures for a day's work - recruited by the big four banks, AMP, Macquarie indicate the financial institutions involved are taking the matter very seriously.

So does the list of the external law firms where teams of instructing solicitors will be assisting the banks’ already large inhouse legal teams.

This includes the industry super sector which had been scratching its head about why it had been targeted by the review.  In response they’ve recruited some serious legal guns with silks as well as “Mr Fix-It” Leon Zwier from Arnold Bloch Leibler. Zwier was the fellow who coached Bill Shorten through his Trade Union Royal Commission testimony.

ASIC is also busy preparing to explain its successes and, no doubt, defend its many failings in prosecuting, investigating and stamping out bad behaviour in the sector.

A public tender shows the watchdog has forked out $2.15 million to sign up an external law firm. That tender only runs until June 30, 2018 -- perhaps indicating when ASIC believes the public hearings will wrap up.

However, a spokesman for the FSRC told Fairfax Media this week “there are no deadlines set for June 30, 2018”. The deadlines that have been set are clear -- Hayne is to deliver an interim report on September 30 and a final report on February 1.

In the meantime, there is no need to worry about there being a lack of big name lawyers to run other cases for the banks (like CBA’s defence of allegations from Australian Transaction Reports and Analysis Centre it breached money laundering and anti terrorism financing laws or the same bank’s of allegations from ASIC it rigged the bank bill swap rate) because there are still many able silks around to handle these cases.

Below is a who's who of the lead lawyers only for some of the major financial groups expected to appear at the royal commission. Rest assured there will be a phalanx of other silks and junior barristers to assist these QCs in their endeavours.

For the Commission

Counsel: Rowena Orr

Orr is ranked as one of the country’s best competition lawyers by legal ranking outfit Doyle’s List. Her citation on the prestigious list came after appearing for both the Australian Competition and Consumer Commission (ACCC) and corporate entities in a slew of competition cases including representing Heinz in its baby food battle with the watchdog. Cambridge and University of Queensland educated Orr has extensive royal commission experience compared to some other barristers appointed for the banks, being counsel for the State of Victoria in royal commission into family violence in 2015.

Counsel: Michael Borsky, QC

The relatively fresh faced Michael Borsky has sprinted up the rankings of top barristers since taking silk in 2016 due to his expertise in both commercial and public law. Borsky, a graduate of both Oxford and Monash Universities, recently showed off his deft skills at understanding complex financial matters when given the job of arguing Australian Securities and Investment Commission’s (ASIC) case against Westpac in the bank bill swap rate trial. He has also worked for major corporates including Flight Centre and Coles in the companies' respective stoushes with the ACCC.

Commonwealth Bank of Australia

Counsel: Steven Finch SC

Finch has for several years been regarded as one of the most well-regarded practitioners at the New South Wales Bar. He has only recently swapped bank colours from the red of Westpac (in its defence of ASIC’s case alleging the bank rigged one of Australia’s key interest rates) for the yellow and black for the Commonwealth Bank in preparing the group for the banking royal commission.

According to a survey of the profession by legal publication Chambers and Partners, Finch is a “fierce advocate” who’s manner is described by his peers as "persuasive rather than trying to bludgeon the court into submission.” He is thought to be leading a phalanx of barristers appointed by the bank to take care of its subsidiaries.

External lawyers: Clayton Utz with assistance from PwC

Inhouse leader: Jacqueline Schrader and Anna Lenahan

Australia and New Zealand Banking Group

Counsel: Matt Collins QC

High profile Melbourne silk Matt Collins, QC, is best known for his work in defamation law. He recently represented Rebel Wilson in the landmark defamation proceedings brought against Bauer Media. He also represented News Corp and Andrew Bolt in its famous 18C case. Collins is also an accomplished commercial lawyer and has previously represented ANZ.

Counsel: Alan Archibald QC

An undisputed sage of the Victorian commercial bar, Alan Archibald has represented ANZ in a variety of cases over the years including ANZ’s short-lived defence of ASIC’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. He is renowned for his ability to resolve highly complex, difficult matters which will serve the bank well given its chief executive Shayne Elliott recently described the bank’s 50 page submission to the inquiry as “confronting”.

Inhouse leader: Bob Santamaria

External lawyers: Clayton Utz

National Australia Bank

Counsel: Neil Young QC

Not the rock star, the rock star lawyer, is an often-used quip to describe Young. Like Archibald for ANZ, Young is frequently listed as one of the country’s top silks and praised for his measured approach. A Federal Court judge between November, 2005 and January 2007, Young was described as felling many of his opponents with his “medium paced delivery” in an Age profile written on his appointment to the bench. In the years since he stepped off the bench and back into his barristerial robes, Young has successfully represented Rio Tinto and Crown Casino in difficult legal stoushes.

Counsel: Wendy Harris QC

A class action gun for hire, Harris has represented Murray Goulburn, Newcrest, UGL, WorleyParsons and NAB in securities class actions. Harris has also built up extensive litigation experience representing the Victorian government in its $1 billion claim against Tatts and Tabcorp in 2015 and was counsel for the Insurance Council of Australia in the Victorian bushfires royal commission. The senior vice-president of the Victorian Bar Council, Harris also recently worked with Young defending NAB against allegations from ASIC it had rigged the bank bill swap rate.

Inhouse leader: Sharon Cook

External lawyers: Herbert Smith Freehills

Westpac Banking Corp

Counsel: Matthew Darke QC

Darke has only recently wrapped up his representation for Westpac at an eight week trial for the bank over its alleged rigging of the bank bill swap rate. It was at that trial that Darke a defence that studiously avoided any mention of a swear word -- quite the feat given that much of the evidence led by ASIC of trader’s conversations were extremely blue. After taking silk in 2014, Sydney-based Darke has fast become a lawyer of choice for major corporations in insolvency, competition and intellectual property matters.

Counsel: John Sheahan QC

Another star of the bar, Sydney-based Sheahan has earned a reputation for his deft handling of complex commercial litigation. His name popped up in 2014 as speculation ramped up about the next judicial appointment to the High Court following the retirement of none other than Commissioner Hayne and Justice Susan Crennan. Sheahan is an expert in competition law and is a member of the Takeovers Panel but he’ll bring additional strength to the team through his experience as senior counsel assisting the James Hardie Inquiry in 2004.

External lawyers: Allens, Gilbert + Tobin

Inhouse leader: Rob McGrory, Rebecca Lim

Industry Super Australia (Australian Super, CBUS, etc)

Counsel: Jim Delany QC

This widely respected Melbourne silk is known for his broad commercial experience particularly with class actions, contract law and corporate disputes. This has included the class action brought on behalf of detainees at Manus Island and the incredibly complex litigation relating to collapsed forestry managed investment schemes and in a damages case brought by Asahi against three warranty. Given the fact that the governance of builders’ super fund CBUS was canvassed at the trade union royal commission, Delany’s experience in construction litigation could also come in handy.

Counsel: Michael Henry SC

The Sydney-based senior counsel has made running high profile cases part of his routine. When directors and companies find themselves in a serious regulatory spot of bother, Henry is often one of the first people who are called including by James Hardie director Dan O’Brien in his High Court appeal. The seriously skilled silk also includes in his CV ‘by way of contrast’ that he was the executor of the deceased estate of Richard Pratt in proceedings brought by his former mistress.

External law firm: Leon Zwier, Arnold Bloch Liebler

Inhouse lead: Litsa Tsitsis

Macquarie

Counsel: Garry Rich, SC

Keen watchers of Eddie Obeid’s many and varied legal stoushes will know Rich as one of the former Labor powerbroker’s barristers. Rich took silk in 2013 and since then has been busy adding quite a few strings to his bow. He represented Airport Link receivership against Arup. Chris Hill from PPB described Rich’s performance as exceptional in an interview with Fairfax Media.

"To just be able to completely tear a modeller apart on his own traffic forecasts was extraordinary … it was like watching a train wreck," he said.

Another recent highlight was Rich’s handling of Radhika Oswal’s testimony at the Supreme Court of Victoria in the billionaire’s $200 million legal victory against ANZ.

External lawyers: Allens

Inhouse: Group legal

AMP

Counsel: Philip Crutchfield QC

Tall and tanned, Crutchfield has run litigation for the likes of Woolworths, BHP and the non executive directors of Centro in the long running class action brought against the crippled mall landlord. More recently the Melbourne-based lawyer honed his regulatory experience acting for ASIC in its bank bill swap rate rigging case against Westpac, NAB and ANZ. While Crutchfield has broad experience in commercial law and is known as being meticulous in his preparation, it's in cross examinations that he really shines. Presumably, AMP took this into consideration when thinking who could best wargame their executives for being in the witness stand.

Counsel: Robert Hollo, SC

An expert in many areas, Hollo shines in insurance stoushes particularly those involving life insurance. Given the recent issues in the life insurance industry after revelations about dodgy definitions and poor practices at AMP’s rival CommInsure, it’s not surprising that Hollo is on AMP’s list, according to sources. Hollo has also represented the Commonwealth Bank in several cases involving claims by consumers against the financial institution.

External lawyers: Chris Fox of King & Wood Mallesons in Melbourne.

Inhouse lead: Group legal

AustralianSuper

Counsel: Michael O’Bryan QC

AustralianSuper may be part of the industry super fund sector that has been fiercely resisting their inclusion in the terms of reference for the royal commission, but just in case they’ve retained top silk Michael O’Bryan as their representation for the royal commission. O’Bryan is known for his work in competition and consumer law and was a panelist on the Harper competition review. According to a recent survey of clients of lawyers for leading legal publication Chambers and Partners, O’Bryan is a “calm under pressure sort of guy” with an “enviable style and presence in court”.

Instructing Law Firm: Thomson Geer

ASIC

Counsel: Peter Collinson QC

Collinson is one of ASIC’s frequent picks for counsel but he’s also worked on the other side of the bar table representing corporates (like MYOB in 2002) which have run afoul of the corporate watchdog. He recently worked with Borsky and Crutchfield on ASIC’s case against Westpac over the bank’s alleged rigging of the bank bill swap rate. Softly spoken in court, Collinson is a self-described lover of the law who joined the bar in 1991 in the midst of the Australian economic recession and Victorian commercial property crisis.

External law firm: Corrs Chambers Westgarth

 

Inhouse lead: Chris Savundra

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