Former Melbourne Barrister Norman O'Bryan Sentenced for Class Action Fraud
O'Bryan pleaded guilty to attempting to dishonestly obtain payment of legal fees to which he was not entitled, in a breach of trust that a judge described as "blatant."
Norman O'Bryan, 68, a former Melbourne barrister, has been sentenced to a four-year community corrections order with 600 hours of unpaid community work. The sentence was handed down by Judge Fran Dalziel in the County Court of Victoria after O'Bryan pleaded guilty to one charge of attempting to defraud claimants in the Banksia Securities class action.
The Offense
The offense occurred between November 2017 and February 2018. O'Bryan drafted invoices for legal fees in the class action, known as the Bolitho proceeding. Prosecutors stated that on dates when O'Bryan claimed to have worked on the case, he was either engaged in other matters—including court appearances—or was not present in Australia.
The exact amount of overcharged fees was not fully determined for the criminal matter but is estimated to exceed $1 million. Court records indicate O'Bryan and another lawyer, Mark Elliott, had planned to take 30% of the settlement for legal fees. O'Bryan instructed an assistant to fabricate invoices to inflate his fees from over $1 million to $2.35 million plus GST.
Background of the Class Action
The class action involved claimants suing investment manager Banksia Securities after its collapse in October 2012, which resulted in approximately $100 million in lost investments. The company owed about $663 million to debenture holders at the time of its collapse.
The case settled for $64 million in 2017, with approximately $20 million allocated for legal fees. O'Bryan served as barrister for the claimants and was also a funder of the action.
The fraud was uncovered after debenture holder Wendy Botsman appealed the settlement due to concerns about excessive legal fees. A court-requested investigation subsequently found that O'Bryan and others involved had added unwarranted fees to claimants' legal bills. The appeal was upheld, and a judge ordered the recovery of over $20 million.
Sentencing Considerations
Judge Fran Dalziel stated that O'Bryan's conduct was "blatant" and that he had "breached the trust of his clients and failed to act with the integrity required of lawyers in general and senior counsel in particular."
The court considered O'Bryan's early guilty plea, his expression of remorse, his prior good character, and his history of charitable and pro-bono work. Judge Dalziel indicated that O'Bryan would have been sentenced to two years' imprisonment if he had not pleaded guilty.
Victim Impact
Keith Pitman, a member of the committee representing class-action claimants, submitted a victim impact statement describing significant effects on his mental health. Pitman, who is 90 years old and had been retired for 25 years, stated that the situation had "put a dark shadow on our latter years of retirement" and described the experience as "seven years of hell" and "a slow motion robbery."
Many claimants in the class action were retirees who had lost retirement funds in the Banksia Securities collapse.
Related Legal Matters
Another lawyer involved in the alleged fraud, Mark Elliott, died in 2020. Reports indicate Elliott and another person involved in the matter died by suicide that year.
Personal Background
Norman O'Bryan comes from a prominent legal family. His father and grandfather both served as Supreme Court judges, and his brother, Michael O'Bryan, is a current Federal Court judge. O'Bryan was educated at Oxford University as a Rhodes Scholar.
He previously served on the Takeovers Panel and on the board of Carey Baptist Grammar School for ten years. O'Bryan also worked on major white-collar crime cases for the corporate watchdog.
Professional Consequences
O'Bryan was declared bankrupt in 2020 and was struck off from legal practice the same year. He sold his house to repay $1.25 million. He also returned his Order of Australia medal in 2020, which had been awarded for his services to charities.