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TOPIC: Rory O'Brien's Letter to RC Hayne & Ms Orr QC

Rory O'Brien's Letter to RC Hayne & Ms Orr QC 2 months 2 weeks ago #4223

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Ms Rowena Orr,
QC Senior Counsel
Assisting Royal Commission into Misconduct in the Banking,
Superannuation and Financial Services Industry

Dear Ms Orr,

Re: Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry

We have very serious concerns about how some aspects of this Commission have been handled by the Commissioner and, in some cases, Counsel Assisting.

Of particular concern we note the following:

1. Your findings and recommendations in respect of the conduct exhibited in the ANZ takeover of Landmark stand in stark contrast to the findings of Mr Hodge under the almost identical scenario of the CBA takeover of Bankwest. This is inexplicable.

2. To our knowledge, Mr Hodge reached his erroneous conclusions:

Without engaging directly with any meaningful cross-section of the Bankwest victims;
Without the assistance of independent banking experts to advise on the CBA’s true motivation and machinations;
Behind "closed doors" with apparently no interaction with the relevant parties including the Ombudsman, Kate Carnell, who had already reviewed the matter in considerable detail and exposed unconscionable conduct.

Commissioner Hayne has suggested the circumstances were different. How so? This is quite obviously incorrect and studiously ignores its homogeneous nature and clear and compelling parallels not to mention CBA’s established patterns and propensity for appalling conduct as exposed elsewhere by the Commission. 3. Several critical and significant errors of fact in relation to the CBA/Bankwest issue have been made in the Commission’s Interim Report. These errors have been drawn to the attention of the Commissioner, including supporting evidence, yet the Commissioner has refused to review these matters, let alone correct the errors. Frankly this is quite extraordinary. The Commissioner is formally on notice re these matters. (Refer my letters of 24 October 2018 and 4 December 2018 which are attached, and my previous emails and letters to the Commission.)

In particular, the Commission erred:

In asserting my loan expired in November 2008 and as such I was "in default". This is wrong as my loan did not expire until 28 February 2009 (many other extremely pertinent details were also overlooked).
Stating that CBA could not reduce the price paid for Bankwest through the deduction of impaired loans. This is clearly wrong. In my case the evidence provided to the Commission confirms CBA’s failed attempt to achieve a $47m impairment claim to reduce the price of Bankwest. This is a matter of indisputable record.
Ignoring the $1.6 billion “up front” discount applied to the Bankwest loan book and its very serious implications as to how CBA treated the matter and, in particular, the "inherited" Bankwest customers. Again, this is where senior, independent, specialist banking advice was sorely lacking.

Quite obviously the Commission’s findings extrapolated from and/or based upon these factual errors are simply wrong. It also raises the question: what other errors have been made and will this bring the entire report into disrepute?

In essence, the Commission's “inquiry” into the treatment of Bankwest customers by CBA post take-over has not been completed properly. Independent, expert, banking advice has not been obtained, fundamental errors of fact have been made, seriously impacting findings, but were not corrected, and the additional time and resources offered by the Government to complete the inquiry thoroughly have been inexplicably rejected by the Commissioner. All this has occurred despite revelations that CBA is the standout "Gold Medal" performer when it comes to appalling conduct towards customers, right across CBA’s business activities. Surely this speaks volumes? We now share these very serious concerns with you in your capacity as Senior Counsel Assisting and put you on notice that you are now formally informed, and action needs to be taken prior to release of the Final Report. We intend to take the handling of this matter to the highest Government authority.

Yours sincerely,

Rory F O’Brien

Attachments (see below for the complete communication to Rowena Orr QC) including:
Letter to Simon Daley 24 Oct 2018
Letter to Commissioner Hayne 4 Dec 2018
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