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Former silk cannot shake findings he ‘thwarted’ administration of justice
A disgraced barrister tossed out of the profession because of his misconduct in the Banksia class action has failed to appeal findings that he thwarted the administration of justice for financial gain.
Naomi Neilson
Former Victorian and South Australian barrister Norman O’Bryan was condemned by Justice John Dixon for being the “mastermind [of a] dishonest and fraudulent scheme” to stake out a financial advantage in the class action against Banksia Securities Limited.
Elliott was the solicitor on the record for the Banksia class action and O’Bryan was retained by lead plaintiff Bolitho.
Both their families were substantial shareholders in the funder, meaning they each had a “financial interest” in the outcome of the proceedings that went beyond “any legal fees recoverable”.
Justice Dixon removed both O’Bryan and another silk Michael Symons from the roll. The South Australian Supreme Court then quietly and privately removed O’Bryan’s name from its roll.
Elliott died in 2020, shortly after deleting emails about fee pricing and arrangements from his phone. They were recovered by a court.
KPMG’s John Lindholm, the receiver of Banksia Securities, launched and then settled claims against O’Bryan for $1.25 million.
The following judgment was the subject of O’Bryan’s application for leave to appeal before the Victorian Supreme Court’s Justices Maree Kennedy, Kristen Walker, and Cameron Macaulay.
O’Bryan specifically took issue with seven paragraphs in Justice Dixon’s reasons, which set out the background of his offending in the class action and detailed how the settlement sum was reached.
“In a nutshell, at the expense of debenture holders, the defendants sought to achieve and then divide up ill-gotten spoils from the Bolitho litigation and then to thwart the proper administration of justice and retain their illegitimate financial gains,” Justice Dixon said.
“Once they achieved court approval of their settlement scheme through breach of their duties to the proper administration of justice, there was a concerted campaign, over the course of two years and three months, to conceal their misconduct.”
The primary issue before the appeal bench was whether O’Bryan had “an independent common law right” and could draw on the principles as they related to the natural justice.
O’Bryan submitted a number of High Court authorities “make clear” that the right to appeal from a breach of natural justice is “implied into all statutes” governing Australian courts and quasi-judicial tribunals.
However, Justices Kennedy, Walker, and Macauley said there was no common law right to appeal, according to authorities that “are longstanding and span the years from 1864 to 2000”.
The bench found O’Bryan’s application was “incompetent”.
They also found O’Bryan “conflated” two separate matters when relying on the general cases covering natural justice procedures.
The first concerned the circumstances in which a court could find there is an obligation to accord principles of natural justice and the second referred to whether a right to appeal might be conferred where natural justice principles might have been breached.
The appeal bench said the appeal was concerned with the latter.
“Even assuming, for the purposes of the objection to competency, that the trial judge breached the principles of natural justice, this does not resolve the issue as to the competency of the case,” Justices Kennedy, Walker and Macauley said.
“This is because the cases cited to not support the existence of some separate common law right to appeal based on a breach of natural justice, or otherwise.”
While it was “strictly unnecessary” to do so given the findings they already made, the bench considered whether a March 2023 settlement deed barred O’Bryan from pursuing the appeal.
The deed – which dismissed claims against O’Bryan in exchange for the $1.25 million settlement sum – set out that the former silk “would not commence or maintain any claim” against Banksia or Lindholm.
In addition to submitting the appeal that was lodged before the settlement deed came into effect, O’Bryan argued the application for leave to appeal was not a “claim” within the meaning of the deed.
The appeal bench said the first submission was “without merit” and, because O’Bryan has paid the settlement sum, “he appears to have accepted ‘the satisfaction of the conditions precedent’”.
“In such circumstances, there is considerable merit in the respondent’s submission that there would be a waiver of any condition precedent even if it would otherwise operate,” they said.
On O’Bryan’s second argument, the bench said the term “claim” would “readily cover the application for leave to appeal”.
“The matters raised by the applicant were without merit,” the appeal bench said.
“In all the circumstances then, even if the application was competent, we are of the view that it would be summarily dismissed on the basis that it has no prospect of success.”
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
