UPDATE …Shining light of the Yarraside bar ‘n’ grill has withdrawn his defence to overcharging allegations in the Banksia Securities class action … Conceded judgment should be made against him and that it is appropriate he be struck from the jam roll … Fee doctoring on an industrial scale … Transcript … Contradictor’s compilation of misdeeds … Ginger Snatch reports  

David Batt, the QC for prominent Yarraside SC Norman O’Bryan, told the VicSupremes today (August 3) that his client won’t contest the overcharging allegations made against him arising from the Banksia Securities class action and that it is open to the court to strike him off the jam roll. 

He accepts that judgment for his financial liability should be made and will not seek to recover a large amount of fees he claims as unpaid. 

Contrition and regret were also expressed. 

It is alleged that O’Bryan, the deceased litigation funder Mark Elliott who died in an accident earlier this year, and other lawyers, were involved in a scheme that saw their class action clients in the Banksia case charged $22 million in fees and commissions.  

Banksia debenture holders had settled their claim for $64 million, plus a separate amount of $13.25 million from the directors and auditors. This was approved by the Supreme Court, including $12.8 million in commission to Elliott’s Australian Funding Partners Ltd and $4.75 million in legal bills. 

Years after the class action commenced, O’Bryan and junior barrister Michael Symonds sent in another bill for $2.7 million with insufficient documentation. 

Banksia’s mortgage investment and lending business collapsed in 2012 with 16,000 investors trying to collect $660 million in funds. 

The allegations against O’Bryan emerged from findings by Peter Jopling QC, a contradictor appointed by the court to look into the legal fees for the applicants. Jopling told Justice John Dixon in April this year that there was no evidence that the bills for $2.7 million were genuine. 

Last September Justice Dixon dismissed O’Bryan’s claim that Jopling had overstepped his role in assessing the bills. 

Among Jopling’s allegations were that O’Bryan had charged fees that “exceeded any proper entitlement in respect of work undertaken”; fees were determined according to the amount received by the fund; false and misleading information had been given to the court on multiple occasions; and there was other “disentitling conduct”. 

Justice Dixon said there was enough from the contradictor for a trial about the behaviour of the legal representatives – breaches of fiduciary duty, breaches of professional conduct rules and breaches of funding agreements.  

Last month, Jopling told the court that Anthony Zita who represented Laurence Bolitho, the lead applicant in the class action, was under the control and direction of Elliott and O’Bryan and that he was little more than a “post box” – especially during the settlement negotiations in 2016.

The contradictor told Dixon that the trio of Elliott, O’Bryan and Symons rode on the coat-tails of work done by Ferrier Hodgson. 

Now, today, the court has been told that O’Bryan is running-up the white flag. 

This is an extraordinary turn of events for one of Melbourne’s most glittering barristers. 

Norman O’Bryan is the son and grandson of Supreme Court judges; he won the Supreme Court prize in 1980; was a Rhodes scholar in 1981; Vinerian Scholar at Oxford in 1983; a partner at Minter Ellison between 1985 and 1993; admitted to the Vic bar in 1993 and silk seven years later; with a gong as a Member of the Order of Australia in 2008. 

And here’s Norman in 2016 getting the bar’s pro bono award. 

The Bar recognises the contribution of Norman O’Bryan AM SC at the 2016 Pro Bono Awards pic.twitter.com/gBT8uTuINl

— Victorian Bar (@VictorianBar) November 17, 2016

His brother Michael is a Federal Court judge, another brother Stephen O’Bryan QC was the founding commissioner of Victoria’s public sector anti-corruption commission IBAC, and cousin Nicholas is the managing partner of well-known criminal law shop Galbally & O’Bryan. 

There may well be an inquiry to see whether Norman O’Bryan and colleagues engaged in schemes to extract excessive fees in other class actions. 

It’s a puzzle why Norman, whose world was his lobster, would want to be part of a rapacious scheme. It will play nicely into the government’s current campaign against class actions. 

This has not been a good season for legal dynasties, what with the Gobbos, the Vastas and now the O’Bryans. 

Transcript of proceedings, Supreme Court of Victoria, August 3, 2020