Solicitor's eminent supporters must remain a mystery
The Age
Thursday September 10, 2009
THE eminent lawyers and prominent members of the insurance industry who gave "particularly impressive" character evidence to the Administrative Appeals Tribunal about former HIH Insurance director Bob Stitt, QC, have won the right to keep their identities private.The tribunal, which said in August the character evidence was "an important consideration" in its decision to overturn the insurance regulator's 2007 disqualification of Mr Stitt from the boards of insurance companies, has agreed to his request for the referees' names to be suppressed.The Australian Prudential Regulation Authority did not oppose Mr Stitt's confidentiality application. A spokesman said APRA had no comment to make on its stance.A spokeswoman for the tribunal said yesterday that "ordinarily, evidence that's provided to the tribunal can be made public in accordance with section 35 of the AAT Act".However, the tribunal's reviews of decisions made by APRA were also affected by the Insurance Act, she said.Under that act, applications to the tribunal are held in private, although the outcome and the reasons for it can be made public.The treatment of Mr Stitt's referees differs from the tribunal's July 2008 reasons for overturning APRA's disqualification of another non-executive director of HIH, Charles Abbott.The tribunal's reasons for allowing Mr Abbott to resume any senior role in the insurance industry identified his six referees from the legal profession, the church and the business community.The procedure relating to disqualifications of company directors by regulators contrasts with bans imposed by courts, where character evidence is normally given in public.Mr Stitt, a prominent commercial barrister in Sydney, applied for the confidentiality orders last week after BusinessDay applied for access to the evidence used by the tribunal, headed by former Federal Court judge Brian Tamberlin, QC, in reaching its decision.The August tribunal findings noted Mr Stitt had filed affidavits "from a broad spectrum of eminent professional persons from the legal world, and from prominent members of the insurance industry with whom he has been associated over many years and, in some cases, over decades."In particular, one very senior person who has known Mr Stitt over many years expressed the view that any lack of care, attention and diligence would be quite foreign to the character of the person known to the deponent. What we take from this body of evidence, which we find to be particularly impressive, is that the failures alleged against Mr Stitt in this hearing, even if they were to be substantiated, would be out of character."The tribunal criticised APRA for failing to call its own expert witnesses on industry standards."That is not to say that such evidence would be determinative but, in this case, it would have been useful in evaluating the level of competence which should be applied in considering the conduct of Mr Stitt," the tribunal said.
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