Striking off of Mr Norman O’Bryan SC

In Bolitho v Banksia Securities Ltd (No 18) [2021] VSC 666 John Dixon J, of the Supreme Court of Victoria, struck from the roll Norman O’Bryan SC and Michael Symons of counsel on account of their conduct in and about that litigation.  The lengthy judgment includes the following which are salutary in respect of counsels’ conduct:

[1]  In 1837, Lord Langdale observed:

With respect to the task, which I may be considered to have imposed upon counsel, I wish to observe that it arises from the confidence which long experience induces me to repose in them, and from a sense which I entertain of the truly honourable and important services which they constantly perform as ministers of justice, acting in aid of the judge before whom they practise. No counsel supposes himself to be the mere advocate or agent of his client, to gain a victory, if he can, on a particular occasion. The zeal and the arguments of every counsel, knowing what is due to himself and his honourable profession, are qualified not only by considerations affecting his own character as a man of honour, experience, and learning, but also by considerations affecting the general interests of justice:  Hutchinson v Stephens (1837) 1 Keen 659; 48 ER 461 , 464.

[2]  On 9 November 2017, Mr Michael Symons of counsel put an offer of $64 million to settle two proceedings against the trustee of an investment scheme. Later that evening, his leader, Mr Norman O’Bryan SC emailed Mr Symons, his instructing solicitor, Mr Anthony Zita, and the managing director of the litigation funder, Mr Mark Elliott:

Provided Mark can do a satisfactory and enforceable deal with Lindholm on the division of these spoils (which will be confirmed between them tomorrow), we can do this deal. (emphasis added)

[3]  The events described in this judgment would have shattered Lord Langdale’s confidence, his expectation of lawyers as an honourable profession. The idiomatic ‘division of the spoils’ was apposite. The spoils, had they been obtained, would have been ill-gotten. The conduct in winning and dividing them was dishonourable. The truth was obfuscated. The perpetrators went to extraordinary lengths to conceal their misdeeds. Others stood by, failing in their duty to protect. About 16,000 elderly investors in a failed company had suffered substantial financial loss. The process of exposing these misdeeds was laborious, costly and delayed. The victim was the proper administration of justice.

[4]  Two of the investors in the failed scheme refused to accept that the litigation funder and legal team were claiming reasonable and proportionate deductions from the settlement. Their objections ultimately thwarted the proposed division of the spoils and exposed the misconduct to be described in these reasons.

[5]  The Court of Appeal approved the settlement sum of $64 million, but remitted for the determination of this court, the application by the litigation funder, now second plaintiff, Australian Funding Partners Pty Ltd (‘AFP’). AFP sought court approval of a funding commission of $12.8 million (plus GST) and legal costs and disbursements of $4.75 million (plus GST) to be deducted from the settlement sum. However, AFP substantially abandoned this application during the remitter. By final submissions, AFP no longer sought a funding commission at all. Its claim for legal costs and disbursements shrank to a modest amount for reimbursement of various expenses.

[6]  The Contradictor’s case was that AFP was disentitled from recovering any amount (including its claims for costs) by reason of its dishonesty and misconduct, and the dishonesty and misconduct of its agents, Mr Norman O’Bryan SC (the second defendant) (‘O’Bryan’), Mr Michael Symons (the third defendant) (‘Symons’) and Mr Anthony Zita and his firm, Portfolio Law (the fourth defendant) (collectively, ‘Zita’) (together, the ‘Lawyer Parties’). The Contradictor claimed that AFP and the Lawyer Parties breached the paramount duty and overarching obligations under the Civil Procedure Act 2010 (Vic) and should be ordered to pay compensation for the delay in distribution to debenture holders of their just entitlements, and to pay the costs of the remitter on an indemnity basis. Identical claims were made against, and relief sought from, Mr Alex Elliott (the fifth defendant) (‘Alex Elliott’), and the expert witness retained by AFP, Mr Peter Trimbos (the sixth defendant) (‘Trimbos’).

[7]  I will enter judgment as follows:

1.  The second plaintiff’s application is dismissed.

2.  The second plaintiff and the second to sixth defendants pay to the first defendant, in his capacity as special purpose receiver of the rights and entitlements of debenture holders in Banksia Securities Ltd:

(a) compensation of $11,700,128;

(b) the first defendant’s costs of and incidental to the appeal, and the costs of and incidental to the remitter, to be assessed on an indemnity basis; and

(c) the Contradictor’s costs of and incidental to the remitter, to be assessed on an indemnity basis.

3.  The second plaintiff is entitled to set off the sum of $234,375 against any sum payable under paragraph 2.

4.  The names and other particulars of the second defendant and the third defendant be removed from the roll of persons admitted to the legal profession kept by the court.

5.  The fourth defendant and the fifth defendant shall each show cause, on a date to be fixed, whether, in the context of the findings expressed in these reasons, he is a fit and proper person to remain on the roll of persons admitted to the legal profession kept by this court.

6.  The first defendant’s application (by summons filed 18 August 2020) for costs orders against non-parties is adjourned to a date to be fixed.

7.  The Prothonotary is directed to provide copies of the following documents to the Director of Public Prosecutions:

(a) the Revised List of Issues filed 27 October 2020;

(b) the exhibits tendered at the trial of the remitter;

(c) the transcript from all hearings in the remitter since 27 July 2020, including the trial, case management hearings and applications;

(d) the outlines of closing submissions relied on by each party; and

(e) these reasons.

…

[24]  Motivated by demands from the defendants for security for costs, on 20 January 2014, Mark Elliott incorporated AFP (then as a public company limited by guarantee) to act as a litigation funder. At its inception, a total of 1,000,000 shares were issued at a price of $1.00 per share, held equally by AMEO Investments Pty Ltd (‘AMEO’) (an entity controlled by the Elliott family) and Noysue Pty Ltd (‘Noysue’) (an entity controlled by the O’Bryan family).

[25]  On 7 February 2014, Noysy Pty Ltd (as trustee for the Susanorman Family Trust) (‘Noysy’) transferred $500,000 to AFP in consideration for Noysue’s subscription for shares. Noysue’s director was Ms Susan Noy, O’Bryan’s wife. Later that month, Mark Elliott transferred almost all of his investment in AFP from AMEO to another of his companies, Decoland Holdings Pty Ltd (‘Decoland’).

…

[96]  O’Bryan was senior counsel for Mr Bolitho between December 2012 and March 2019. Until the trial of the remitter, he had practised as a member of the Victorian Bar for many years, much of that time as a member of the inner bar. He was a sought after advocate and previously a member of the Order of Australia.21

[97]  Symons was briefed as junior counsel in the Bolitho proceeding from September 2014. He signed the bar roll in May 2013, after earlier serving as an associate to a judge of this court. Much of his work as a barrister consisted of briefs in commercial group proceedings involving O’Bryan, Mark Elliott/AFP and Zita.

[98]  After returning their briefs early in the remitter, O’Bryan and Symons fiercely resisted the Contradictor’s allegations of disentitling conduct on technical and procedural grounds. They also sought to set aside the order that they provide the court with an explanation of their conduct. They never offered the court a true explanation of their conduct, putting debenture holders to the great expense of proving their involvement in a fraudulent scheme. It was only at trial, after the Contradictor’s opening submissions had laid bare the true extent of their appalling conduct, that they capitulated and purported to express remorse for their actions.

[99]  As members of counsel, O’Bryan and Symons were not ordinary litigants. They each had a sophisticated understanding of the law and were subject to the strictest of ethical and professional duties. In spite of that, their deception of the court and debenture holders was in the arrogant and defiant (but ultimately erroneous) belief that their conduct would go undetected. They have each left a stain on the integrity of barristers as a profession. O’Bryan’s conduct, in particular, deserves strong condemnation. His seniority, standing and influence meant that the court and other legal practitioners treated his representations to them with an intensified level of trust.

[100]  The capitulations by O’Bryan and Symons meant that they did not give evidence in their own cases. As the Contradictor submitted, the failure by O’Bryan and Symons to give evidence provides a strong basis for the court to:

(a)  infer that any evidence they might have given would not have assisted them or AFP; and

(b)  more confidently draw against them adverse inferences that are available from other evidence tendered in the case.

[101]  Although O’Bryan did not give evidence in his own case, Alex Elliott issued a subpoena for him to give evidence in Alex Elliott’s defence. As discussed later in these reasons, I limited the issues on which O’Bryan could give evidence, and his evidence was necessarily confined.

…

[127]  I am satisfied that O’Bryan did not dispose of Ms Noy’s stake in AFP, but rather made an arrangement or reached an understanding with Mark Elliott that maintained his family’s interest in AFP, pursuant to which:

(a) Regent Support Pty Ltd (‘Regent Support’),28 an entity controlled by Mark Elliott, held the AFP shares as bare trustee for Noysue; and

(b) O’Bryan retained an ongoing financial interest in the litigation (over and above the legal fees that he was properly entitled to charge).

[128]  There was no evidence of the interrelationship of financial dealings between Ms Noy and O’Bryan (or entities controlled by one or both of them) and Mark Elliott (or any of his entities). O’Bryan’s absence from the witness box was explained in his capitulation statement. Beyond that statement, Ms Noy’s absence, and that of any other person able to explain a money trail (if there was one) was never explained. However, in the absence of an explanation, I am satisfied that there was a sufficient commonality of interest between wife and husband, such that the more probable inference was that O’Bryan gained financial benefit from dealings by, or in the name of, Ms Noy and her related entities. It is in this sense that I speak of O’Bryan’s financial interest in AFP. Absent any explanation to the contrary, I can also more comfortably infer, from the following matters, that Noysue remained beneficially interested in AFP.

…

[482]  Notably, despite its admissions, AFP continued to falsely, and unreasonably, deny the core allegation that O’Bryan and Symons charged more than a fair and reasonable amount, or that AFP procured and/or encouraged them to do so. AFP opened its defence by stating that ‘the Lawyer Parties have deposed to having done work, and there is a large volume of documentary evidence demonstrating that work was done’, which was a reference to 46 folders that O’Bryan discovered in the remitter that he asserted constituted his work product in the period from 1 June 2016 to 30 January 2018.

[483]  If AFP’s advisers had examined them in the same way that the Contradictor had, it would have discovered O’Bryan’s claim to be patently false. On the basis that O’Bryan and Symons continued to deny the allegation of overcharging, AFP continued to press for their costs. AFP submitted that ‘the precise sum of costs’ payable to the Lawyer Parties ‘should be determined after the court makes its findings, whether by taxation or reference to the Costs Court or after further evidence as to quantum’.

[484]  However, circumstances changed for AFP when O’Bryan and Symons offered no defence to the allegations in the Revised List of Issues dated 21 July 2020, and did not contest findings being made against them on the basis of those allegations. They expressly abandoned any claim for unpaid fees. On 4 August 2020, AFP abandoned its application for referral to the Costs Court. Without evidence from Mark Elliott, O’Bryan and Symons, AFP was left without evidence to maintain, contrary to the compelling evidence of the documentary trail, that O’Bryan and Symons charged a fair and reasonable amount, and that AFP did not procure and/or encourage them to do otherwise.

[485]  O’Bryan and Symons did not contest the Contradictor’s allegations concerning their improper fee arrangements. They each expressed their deep regret for their conduct, implicitly acknowledging the truth of the allegations made against them. O’Bryan abandoned his claim against AFP for unpaid fees.

[486]  Given the centrality of the fee arrangements and overcharging contraventions to the conduct of AFP, O’Bryan and Symons overall, I accept the Contradictor’s submission that AFP, O’Bryan, and Symons should be taken to have belatedly conceded that there was no proper basis for the fees they sought to recover from the Trust Co Settlement. Before saying a little more about that conduct, the Contradictor put the following submission, which I accept:

It causes one to ponder about the complicit nature of the understanding or arrangement between O’Bryan, Symons, and AFP, whereby each agreed to hold out for the payment of counsel’s fees until the last possible moment, which saw each of them capitulate in early August 2020, when neither a mediation nor a settlement appeared possible. Each of them has always been cognisant of the true facts, but would appear to have been determined to force the Contradictors to prove what they always knew. That conduct is the very conduct the CPA was designed to stamp out.

The Court should reject AFP’s submission that it was in no position to make admissions and concessions until after O’Bryan and Symons publicly capitulated. It was Mark Elliott who invited O’Bryan and Symons to charge fees that he determined based on a ‘division of the spoils’ (including cancellation fees). And even after Mark Elliott’s death, AFP inexplicably continued to maintain its claim for legal costs, only seeking an updated report from Trimbos shortly prior to the trial. It should be borne in mind that AFP is no ordinary litigant. AFP was a litigation funder and a professional user of the Court’s services.

[487]  The substantial majority of fees recorded in counsel’s contrived fee slips were for reading documents: approximately half of O’Bryan’s charges relate to ‘reviewing discovered documents’, while a significant proportion of Symons’ charges related to ‘reviewing’ the discovery, witness statements, witness outlines, and expert reports. 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. It further required that this absence of work product, and the fact that the real work in connection with these documents had been performed by the Banksia legal team, remain undiscovered by Trimbos, and therefore unquestioned by the court.

[488]  It is difficult to imagine an activity that would generate a clearer evidentiary trail than a legal team preparing for an upcoming trial in a group proceeding in the Commercial Court. Ordinarily, one sees email exchanges between instructing solicitors and counsel and between counsel, memoranda on case theories, research topics and cross-examination issues, task lists, annotations to documents, file notes of calls to witnesses and conferences with counsel, discovery plans, lists of issues, chronologies. Put simply, a trial that is properly prepared generates work product.

[489]  No such evidence existed in this case until approximately September 2017, two months before the successful mediation with Trust Co At this point, O’Bryan decided it was necessary to retain a second junior. Ms Jacobson was briefed to primarily assist with the preparation of the court book, discussed below.

[490]  The Contradictor prepared for trial expecting that O’Bryan and Symons would vigorously maintain their defences and contend that their fee slips were not dishonestly inflated as I have described. The Contradictor forensically analysed the work claimed by counsel in each fee slip — necessarily and regrettably at considerable expense to debenture holders — and identified where those charges did not, or could not, relate to work they actually performed. The Contradictor included much of that scrutiny in its written closing submissions, where a detailed analysis of O’Bryan and Symons’ fraudulent billing practice on a month-by-month basis was laid bare. The Contradictor also presented a detailed analysis of Ms Jacobson’s work, which provided a stark comparison with the claims of O’Bryan and Symons.

[491]  In light of counsel’s capitulations and the findings I have made concerning their fee arrangements, it is not necessary to fully traverse the Contradictor’s submissions concerning what it termed the ‘Overcharging Contraventions’ in great detail. The full proof supporting my findings is found in the record of the trial. It is sufficient to identify some prime examples of dishonest charges by each of O’Bryan and Symons.

…

[1197]  On 3 August 2020, after the Contradictor’s opening had concluded, O’Bryan’s counsel informed the court of the following:

First, Mr O’Bryan will not maintain any further defence of the allegations that have been made against him in this proceeding by the Contradictor in the revised list of issues dated 21 July 2020 and its particulars. In those circumstances. Mr O’Bryan would not be entitled to, and he will not, contend against the court making findings in respect of him in accordance with those allegations.

Secondly, your Honour, Mr O’Bryan consents to the entry of judgment against him (a) for money liability under section 29 of the Civil Procedure Act in such amount as the court determines on the evidence before it and (b) otherwise on the terms as the court sees fit.

Thirdly, your Honour, Mr O’Bryan will not oppose this honourable court removing his name from the Supreme Court roll. He accepts that this should occur.

Fourthly, Mr O’Bryan will not seek payment of any of his unpaid fees in this matter. He abandons any right to such payment.

Your Honour, we are instructed to record that in taking this course Mr O’Bryan seeks to convey and give some measure of effect to his contrition and his very deep regret at his actions and to do what he is now able to do to assist in these proceedings being brought to conclusion.

Consistently with the foregoing, (a) there will be no cross-examination of any witness on behalf of Mr O’Bryan; (b) Mr O’Bryan’s affidavits will not be read and he will not be giving evidence; and (c) no submissions will be made on Mr O’Bryan’s behalf in closing.

[1198]  On 13 August 2020, after filing a number of affidavits in his defence, and after cross-examination of Mr Newman and Mr Kingston, Symons, through his counsel, also capitulated:

Mr Symons deeply regrets the circumstances that have given rise to the remitter and the allegations in the revised list of issues.

He conveys that he no longer contests the allegations contained in the revised list of issues dated 21 July 2020, and the making of findings and granting of compensation the court considers available to it in accordance with those allegations.

For clarity, Mr Symons consents to the entry of judgment against him for monetary liability under s 29 of the Civil Procedure Act in such amount as the court determines is appropriate having regard to the evidence and/or otherwise on the terms the court sees fit.

Further, Mr Symons consents to his name being removed from the Supreme Court roll, and he asks the court to act of its own motion in doing so. Finally, Mr Symons abandons any claim for his unpaid fees in the matter.

As a consequence, Mr Symons’ affidavits will not be read and he will not give evidence. He will not seek to cross-examine Mr Trimbos or any other witness, nor make any submissions in closing.

Symons’ capitulation was substantially the same as O’Bryan’s, save that instead of expressing contrition, he stated that he ‘deeply regret[ted]’ the circumstances that had given rise to the remitter. He also asked the court to act ‘of its own motion’ and remove his name from the Roll. I have disregarded Symons’ cross-examination of both witnesses prior to his capitulation.

[1199]  For convenience, I will refer to each of O’Bryan and Symons’ statements as a ‘capitulation statement’.

[1200]  Symons, through his counsel, had earlier, in May 2019, submitted that he ‘recognises his duty to the court and seeks to ensure that the court is in possession of all the assistance reasonably required for the conduct of the remitter’. I do not accept either of these assertions. He did not provide the court with a frank explanation of the events in issue in the remitter, nor did he ever offer the court or debenture holders an apology.

[1201]  Neither O’Bryan nor Symons ever proffered an explanation for their conduct in the Bolitho proceeding, as it is documented in these reasons. Neither entered the witness box on their own behalf, although O’Bryan gave some evidence that I will come to in due course. There was no suggestion by their counsel that they were present in the virtual courtroom when their capitulation statements were made to the court.

[1202]  At this point in the trial, much of the very substantial expense of the remitter had been incurred by the debenture holders. The court cannot assess why these decisions were not made until this time.

[1203]  On 13 August 2020, following O’Bryan and Symons’ capitulation statements, counsel for AFP stated:

In light of the events that have occurred we are instructed that AFPL will not pursue its application for commission and will pursue its application for costs only in the amounts not disputed by the Contradictor.

…

[1660]  Although not alleged by the Contradictor, and again, notwithstanding that I will make no finding of breach of these overarching obligations, I am comfortably satisfied to the requisite standard on the evidence relied on in the remitter that O’Bryan and Symons’ conduct would contravene:

(a) the overarching obligation to act honestly;

(b) the overarching obligation not to mislead or deceive;

(c) the overarching obligation to ensure that legal costs are reasonable and proportionate; and

(d) the paramount duty,

by their conduct in connection with:

(e) facilitating and/or acquiescing to Mr Bolitho’s provision of their costs agreements to the Contradictor in a manner that suggested they were created in advance of costs being incurred, without any explanation that the documents were in fact created after-the-event, in December 2017;

(f) continuing to act on behalf of Mr Bolitho when serious allegations, which they knew to be true and well-founded, were made against them;

(g) resisting the Contradictor’s efforts at ascertaining when their costs agreements had been created and served on AFP; and

(h) in relation to O’Bryan only, attempting to collude with witnesses to mislead the court.

[1661]  O’Bryan and Symons did not offer any explanation for the conduct alleged against them or why they held out until the very end, at such expense to the 16,000 debenture holders who were their former clients. Neither relinquished their briefs until the Contradictor sought orders that they make affidavits to address their involvement in the Bolitho proceeding, causing them to each seek rulings from the Victorian Bar Ethics Committee.

[1662]  I am satisfied that, by the abandonment of their defences and consenting to the findings to be made against them, both O’Bryan and Symons knew throughout the remitter, despite their participation in various attempts to obstruct the Contradictor, that the evidence against them was overwhelming. Until then, however, they put their former clients, the debenture holders, to the expense of proving their involvement in the dishonest scheme, holding on to the faint glimmer of hope that their fraudulent conduct would not be exposed. Significant unnecessary time and effort was expended during the remitter by the Contradictor to address challenges to the legitimacy of its inquiry, when counsel knew full well that it would uncover their misconduct if not misdirected or interrupted.

[1663]  Further, given that Symons was well aware of his impropriety from the outset of the remitter, it was both inappropriate and reprehensible for him to have instructed his solicitors to threaten personal costs orders against the Contradictor, an officer appointed by the court.

[1664]  As these allegations were not alleged in the Revised List of Issues on which O’Bryan and Symons stated that their capitulation was based, I do not propose to, and have not, taken these findings into account in the overall conclusions I have reached concerning their conduct.

…

[1705]  No clearer case of professional misconduct warranting removal from the Roll can be imagined. However, as O’Bryan and Symons have each agreed to their names being removed (or ‘struck off’) the Roll by their respective capitulation statements, it is unnecessary to revisit the findings I have set out in great detail above in this context. I will make that order in respect of each of them.

…

[2133]  Finally, I consider that it needs to be understood that subject to engagement in particular circumstances, the duties to the proper administration of justice set out in Part 2.3 of the Civil Procedure Act are not attenuated by age, inexperience or other personal characteristics, or by competing duties or obligations, as Part 2.2 of the Act demonstrates. The obligations follow on becoming a person to whom the overarching obligations apply, in the sense now defined by s 10 of the Act. This is a wider category than that of being an officer of the court.

[2134]  It is implicit in being a fit and proper person to be a legal practitioner recognised on the Roll, or in being a litigation funder or expert witness who chooses to participate in litigation in the court, that the overarching obligations apply and will be honoured. While advocates and experts are immune from suit at common law, they are not immune from a compensation order under s 29.

[2135]  The maintenance and restoration of public faith and confidence in the administration of justice is not just the responsibility the courts.

[2136]  First and foremost, there should be no doubt that conduct of legal practitioners, litigation funders, and experts that fractures that trust is significantly detrimental to the administration of justice. In Shakespeare’s Henry VI, Part III, Queen Elizabeth pithily explained the detriment:

For trust not him that hath once broken faith

[2137]  Repairing fractured trust is no easy matter, and involves more than time. It requires new attitudes from all participants in civil litigation, and begins with acknowledging why that is so. It is well that readers of these reasons see the detail that often never emerges, perhaps because of the cloak of legal professional privilege or a want of investigative resources, or because concerted efforts to avoid the cleansing effect of transparency succeed in obscuring bad behaviour in litigation.

[2138]  A good start will be a renewed and invigorated resolve to change litigation culture by a commitment from every person identifiable by reference to s 10 of the Civil Procedure Act to the purposes stated in s 1 of the Act.

[2139]  There was considerable public interest in the trial. Daily, thousands observed the live streamed trial hearings. It was reported extensively in the media, drawing comment in the legislature, including in a parliamentary inquiry. Care should be exercised in identifying the lessons to be learned for the future. A bad apple is not the harbinger of a diseased orchard. From my ‘ringside’ perspective, I saw no reason to be concerned about the efficacy or regulation of group proceedings or litigation funding as pathways for access to justice, or about the capacity of the legal system to properly self-regulate.

[2140]  This judgment also records the restorative capacity of the civil justice system to protect fundamental values, to protect its integrity through the commitment of the judiciary and the profession to preserve, maintain and nourish the common law’s absolute commitment to the proper administration of justice. Ultimately, despite the best efforts of the Contraveners, the spoils were never divided.

[2141]  The public duty, developed in the common law, to always engender and protect the proper administration of justice remains as deeply rooted in the legal profession as it is in the judges. It was discharged by many, in different ways, throughout the course of this proceeding. For the integrity and commitment of the overwhelming majority, I express the court’s gratitude.

… (emphasis added)