Tribunal suppresses names of HIH referees
Sydney Morning Herald
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 the 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 acceded to a request from Mr Stitt for the names of his referees to be suppressed.The Australian Prudential Regulation Authority did not oppose Mr Stitt's confidentiality application. A spokesman said APRA would not comment 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, as in Mr Stitt's case, 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 the authority's disqualification of another HIH director , Charles Abbott.The tribunal's reasons for allowing Mr Abbott to resume a 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 typically character evidence is given in public.The legacy of the 2001 HIH collapse included directors bans imposed in 2002 by the NSW Supreme Court on the former managing director, Ray Williams, and a former non-executive director, Rodney Adler.Those bans were for breaches of the Corporations Act in a case brought by the corporate regulator, the Australian Securities and Investments Commission.The judgment handed down by the late Justice Kim Santow named their character referees.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 a former Federal Court judge, Brian Tamberlin, QC.In its reasons the tribunal noted that 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 the authority for failing to call its own expert witnesses on industry standards.
© 2009 Sydney Morning Herald