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The Multi Million Dollar Fees And “Inexplicable Greed” That Saw The Demise Of a One of Australia’s Leading Silks

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The startling fall from grace of blue-blooded Melbourne SC Norman O’Bryan, a barrister of such repute that he held the Order of Australia, has rocked both the local Melbourne bar and reverberated about the Australian profession.

O’Bryan could barely have had a more distinguished legal pedigree. Both his grandfather and father were both Supreme Court judges, his two brothers are both silks. His case load was heavy and his reputation unblemished.

He enjoyed a reputation as a ‘disrupter’ and celebrated his supreme confidence, something which may have been part of his undoing.

The Banksia Securities class action scandal that saw him lose his reputation and his profession.

The Australian Financial Review looked at the fall from grace of the Sencior Counsel who was involved in a class action lawsuit that settled in 2018 for $64 million, but also served as what the AFR described as “a monument to inexplicable greed.”

O’Bryan had stoutly maintained his collection of $2.3 million in fees for his work on the case was entirely legitimate.

Until last month, that is. The Victorian Supreme Court spent five days looking at the Banksia case and O’Bryan’s fees when he put his hands up dropping any claim to recover his costs, conceded he should no longer be allowed to practise law. He went further, however, and consented to any findings made in relation to the costs and expressed contrition over his actions. Before the end of the week he had forfeited his Order of Australia.

Backdated Invoice + Overcharged Fees

When Banksia collapsed in 2012, it was the largest mortgage debenture company in Australia with investors owed $660 million. Litigation funder Mark Elliott became involved in the case that was always destined to be “a lawyer’s picnic”, as the AFR described.

However the “fraudulent scheme” exposed in relation to the fees charged by O’Bryan and junior barrister Michael Symons was something that sent shock waves about the Melbourne bar and beyond.

A plethora of emails, texts and spreadsheets helped the court-appointed “contradictor” – Peter Jopling, QC, supported by law firm Corrs Chambers Westgarth – lay out a compelling case against the Senior Counsel.

Invoices were back-dated and stamped paid when they had not been paid. O’Bryan used dates when he was engaged in other matters. There were no fee agreements until they were created for a costs consultant. He joked with Elliott and Symons about their audacity.

Lucrative Activities

O’Bryan already had a lucrative and busy practice as well as some operative ‘side operations’ like the rival chambers he set up and a clerking service for the Victorian Bar called Barrister Logistics, which became a successful and profitable source of income with its ability to share in fees away from the Victorian Bar.

had some lucrative operations on the side, setting up rival chambers to the Victorian Bar and a clerking service called Barristers Logistics.

Mark Elliott

He also became heavily involved with the flamboyant Mark Elliott, a lawyer who was a partner at Minter Ellison with O’Bryan in earlier days and who died in a motor vehicle accident on his Victorian farm earlier this year.

Although enjoying success with claims against Murray Goulburn and Downer EDI they abandoned a claim against Myer after the court found they could not prove damage.

The issue arose after a Banksia class member, Wendy Botsman challenged Elliott’s company Australian Funding Partners’ claim for about $17 million in costs and commission out of the $64 million settlement. It included a $4.75 million legal bill, with fees of $2.3 million for O’Bryan, $680,000 for his junior counsel Michael Symons and $377,000 for solicitor Anthony Zita and his firm Portfolio Law.

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