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SA Supreme Court quietly strikes disgraced barrister’s name from roll
A disgraced barrister whose misconduct in the Banksia class action was labelled a “stain” on the profession has had his name quietly struck from the South Australian roll of practitioners.
Naomi Neilson
Justice John Dixon of the Supreme Court of Victoria said the conduct of barrister Norman O’Bryan in the Banksia Securities class action was deserving of “strong condemnation”, including having his name removed from the court’s roll of practitioners.
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Almost two years on, the Supreme Court of South Australia privately and on the papers removed Mr O’Bryan’s name from its roll.
In a full court judgment, the court explained privacy was necessary because it was acting on an order of its Victorian counterpart and because it did not need to do anything “other than proceed on the basis of careful and detailed findings” of Justice Dixon.
In addition to having his name removed, Mr O’Bryan was ordered to pay the Legal Profession Conduct Commissioner’s costs.
Mr O’Bryan was retained as senior counsel for Bolitho, a lead plaintiff and one of the investors of Banksia’s failed investment scheme.
A solicitor on the record, Mark Elliott, incorporated Australian Funding Partners to act as a litigation funder. Both Mr Elliott’s and Mr O’Bryan’s families held substantial shareholdings in this company, meaning they both had a “financial interest” in the proceedings that went well beyond “any legal fees recoverable”.
The plaintiffs were successful and had been awarded $64 million.
Australian Funding Partners obtained approval for a commission of $12.8 million. This was in addition to legal costs and disbursements, which included Mr O’Bryan’s $2.5 million cut.
A contradictor’s extensive investigation uncovered the misconduct, and he submitted that Australian Funding Partners should not recover costs due to its “disentitling conduct, including dishonesty and misconduct by the practitioner, junior counsel and the solicitors”.
After Mr O’Bryan announced he would not maintain a defence and consented to any orders made against him, Justice Dixon dismissed the costs for Australian Funding Partners and ordered that Mr O’Bryan pay compensation in the sum of $11.7 million.
Justice Dixon said Mr O’Bryan’s deception of the court was undertaken “in the arrogant and defiant (but ultimately erroneous) belief that their conduct would go undetected”.
He added the “fraudulent scheme relied on projecting an image of counsel studiously analysing shelves of lever arch folders of material constituting the receivers’ court book for full days at a time, for months on end, without generating any work product”.
“No clearer case of professional misconduct warranting removal from the roll can be imagined,” Justice Dixon said.
