Norman O'Bryan has been convicted for trying to claim false fees from vulnerable clients. Photo: Jay Kogler/AAP
A barrister from a prominent legal family has been spared jail time after trying to falsely claim fees from vulnerable class action clients.
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The brother of a Federal Court judge was handed a lengthy corrections order after trying to illegitimately claim legal fees from vulnerable clients.
Norman O’Bryan clearly breached the trust of the Banksia Securities class action members, Victorian County Court Judge Fran Dalziel said.
But the 68-year-old’s remorse and long-standing good character meant he could be sufficiently punished without being sent to jail, the judge said.
He was instead convicted and sentenced to a four-year community corrections order with 600 hours of unpaid community work — the maximum amount that can be ordered by the court.
“This was not a subtle crossing of the line,’’ Judge Dalziel said in her sentencing remarks on Thursday, May 14.
“The dishonesty was blatant and would have been obvious to Mr O’Bryan as he carried it out.’’
Banksia Securities collapsed in October 2012, owing about $663 million to more than 16,000 debenture holders, many of whom were elderly and lost their retirement funds.
A judge approved a $64 million settlement for class action members and about $20 million in fees and commissions for lawyers, including O’Bryan.
O’Bryan’s offending was uncovered after Wendy Botsman, a retired nurse and debenture holder, appealed against the Supreme Court settlement as the legal fees attached were excessive.
O’Bryan and another lawyer, who has since died, attempted to dissuade Ms Botsman from pursuing her appeal by threatening her with further costs.
But her appeal was upheld and the matter was remitted to the Supreme Court where a judge found against O’Bryan in 2021.
Justice John Dixon ordered more than $20 million be recovered and O’Bryan sold his house to pay back $1.25 million.
Banksia Securities collapsed in 2012.
He declared bankruptcy, was struck off as a barrister in 2021 and he returned his Order of Australia medal.
Police began investigating O’Bryan in 2022 and found he billed the class action members at the same time as being overseas or representing other clients in court, including the ACCC.
None of the clients were made to pay the falsely claimed fees but Judge Dalziel found harm was still caused and O’Bryan’s conduct should be condemned.
“He breached the trust of his clients and failed to act with the integrity required of lawyers in general and senior counsel in particular,’’ the judge said.
But Judge Dalziel accepted O’Bryan had shown remorse by pleading guilty to a charge of attempting to obtain financial advantage by deception.
He was also of prior good character through his years of extensive pro-bono work and there was little to no chance he would re-offend, the judge found.
She sentenced O’Bryan to the four-year corrections order with conviction, noting he would have been jailed for two years if he had not pleaded guilty.
O'Bryan's father and grandfather — both also named Norman O’Bryan — spent decades as Supreme Court judges during the 20th century.
His brother Michael O'Bryan was made a Federal Court judge in 2019 and on Thursday handed down a landmark decision in the consumer watchdog's case against Coles.
O’Bryan’s other brother Stephen became a silk in 2003.
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