Yet this legal jet crashed in a fireball of greed, deception and intimidation – shredded in the very court where his family built a spotless reputation over 100 years.
Mark Elliott was a respected partner in the prestigious Melbourne law firm, Minter Ellison, until he decided to strike out on his own to take on big companies in lucrative class actions.
There was plenty of money to be made but for Elliott, it was never enough. He had a plan; not so much a get-rich-quick scheme but a get-even-richer one.
For him, the stakes would be even higher. He would lose his reputation and his fortune before his mysterious death.
Elliott, O’Bryan and others embarked on a legal deception worth millions and they would have got away with it if it wasn’t for a retired Adelaide nurse and a curious former bus driver from Ballarat, who saw what a succession of courts couldn’t — that something wasn’t quite right in the $64 million case — and refused to be bullied into silence.
“They wanted to charge ridiculous amounts just to distribute funds,” former nurse Wendy Botsman says. But when these legal big guns turned on her after she refused to accept their outrageous claims, she had someone on her side prepared to fire back.
To understand what happened over eight years, we first need to understand the nature of class action litigation.
In many cases, individuals wronged by big companies do not have the money for a prolonged legal battle and the corporations simply stare them down. But when there are thousands of victims, they can band together in one action under the name of a lead plaintiff. They can get justice without further financial risk.
Such cases can be spectacular. Power company SP Ausnet agreed to pay $496 million in compensation to 5000 victims of the 2009 Black Saturday fire in Kilmore.
These actions can take years and require a third-party funder – financiers (punters in pinstripe suits) who pour in millions to pay the legal costs in exchange for a slice of the final settlement.
Where there are big piles of money, there are those with even bigger appetites and some of the funders started to gouge, taking more than was reasonable. In one case, the funders and lawyers wanted $11 million of a $12 million settlement.
Then the courts stepped in. A judge would decide what was a reasonable cut (usually between 20 and 30 per cent) of the final pot, taking into account monies spent and risks taken.
When done right, class actions meant victims were compensated, unethical or lax corporations punished, funders rewarded and justice served.
Enter Mark Elliott, smart, charismatic and with a nose for an opportunity. He had already made a fortune as an investor and executive at Computershare and saw class actions as another business opportunity.
Elliott wanted to redefine these big cases with a business model that was clever, unique and — as we will see — completely unlawful.
He set up Elliott Legal, described as “a boutique law firm specialising in … the conduct of complex class action litigation”.
In the beginning, Elliott bought small packages of shares in 165 publicly listed companies and lay in wait to launch actions.
Under this model, Elliott, as a shareholder, would be a plaintiff (payment one), his firm would run the action (payment two) and he would act as the funder entitled to a large settlement percentage (payment three).
He would tell potential clients he was driven by a sense of justice and felt like he was “swimming with sharks” in the deadly sea of class action litigation.
As some of his cases bounced around the courts, judge after judge pointed out there were significant conflicts of interest.
So Elliott refined his model. He would move much of the grunt legal work to another firm and finance the process through Australian Funding Partners Limited. He owned 76 per cent of AFPL and the remainder was owned by the wife of Norman O’Bryan, SC.
Elliott launched 18 class actions but one that appeared particularly juicy was Banksia Securities, a Kyabram company that funded property and development projects. It had raised $663 million from 15,622 investors (mostly country retirees) when in 2012 it sank like the Titanic.
Within months, Elliott began proceedings against Banksia on behalf of the investors. One was former nurse Wendy Botsman, who had invested about $24,000. Another was former bus driver Keith Pitman, who even in his late 70s would stand in the main streets of Ballarat for hours to sell RSL badges for the Anzac Day Appeal.
O’Bryan was the senior counsel and stood to make millions through the Banksia claim.
Even when the obvious conflict of interest was pointed out by Chief Justice Anne Ferguson, they pressed on.
When she said O’Bryan could not act as the lead barrister while his family owned shares in the funding company, he promised to divest that interest.
The broader issue was whether there was actually a need for a class action because receivers had been appointed to recover as much money as possible, funds that would be reduced once Elliott took a giant bite.
The case rolled on and there was finally a settlement of $64 million (after the receivers took their fees). Then it was up to a court to decide what was a fair slice for Elliott’s funding company.
In such a case, the court can appoint a contradictor – a person to examine all the bills.
In January 2018, they argued in the Supreme Court that as they had done everything by the book, appointing a contradictor would waste the money of the poor victims and delay their much-needed payment.
Justice Clyde Croft, believing that as officers of the court O’Bryan and Elliott were telling the truth, found appointing a contradictor would be a “gratuitous waste of limited resources”.
On January 30, 2018, he approved the $64 million settlement and ordered Elliott’s company be paid $12.8 million (plus GST) and the legal team $4.75 million (plus GST).
Except Pitman smelled a rat. During subsequent hearings, he would rise early, pack a lunch and take a train to the Supreme Court to make sure he wasn’t railroaded.
Now 84, he had $20,000 invested in Banksia. As one of 10 victims on a committee to oversee the return of investors’ money, he saw receivers take $11 million, leaving $64 million. When Elliott’s team wanted at least $20 million, “I felt this was too steep. It was too much. Elliott had barged his way into this case and then wanted a lot of money for doing very little”, Pitman says.
“When Banksia went under, it was devastating but then to find out about conflicts of interest and lawyers looking after themselves, instead of the people they’re supposed to be helping, has been unbelievable.”
Botsman wasn’t comfortable either and unfortunately for Elliott and O’Bryan, her son, Chris, was a lawyer, then living in Sydney, who specialised in white-collar crime.
He was also a heavyweight, having worked for the Financial Conduct Authority and the Australian Securities and Investments Commission. He thought the settlement of $64 million was too low and the amount given to the funders and lawyers outrageously high.
Chris asked questions on behalf of his mother and received rubbery responses. So he did what good lawyers do: he went to court arguing that a contradictor should be appointed.
Here, Elliott and O’Bryan made a fatal miscalculation, deciding to bully their way to victory.
They went to court to stop Wendy Botsman, threatening her with financial ruin through inflated court costs, saying she could be forced to pay $5289 a day if her action failed.
Even though they were told to send any documents to her lawyer and son, Chris, they had a process server turn up at her house – an act clearly designed to intimidate. It was the legal version of a horse’s head in the bed.
She was asked to provide details on the value of her house and her assets. And so the Banksia class action lawyers – her lawyers – were using the precise tactics class actions were meant to stop: threatening individual victims with financial ruin if they took on the big guys.
“It was very stressful,” says Botsman, 73, “but Chris was very reassuring.”
She says if her son and his colleagues had not worked for nothing, no one would have stopped the class action lawyers’ scandalous payment.
Pitman says: “If it wasn’t for Chris taking them on, none of this would have come to light.”
The bullies failed and the Court of Appeal ordered a contradictor be appointed. It was the beginning of the end for the Elliott empire.
The appointment of Peter Jopling, QC, as the contradictor would prove to be a masterstroke.
Like O’Bryan, Jopling had been a brilliant Melbourne University law student, becoming an associate to High Court judges. Like O’Bryan, he was a senior barrister at the Bar and both were Order of Australia recipients.
The two senior lawyers had contrasting styles. Jopling used the “helicopter view”, explaining his case in broad terms before returning to forensic detail.
O’Bryan was a bulldozer. His approach was to set out his version of the facts, suggest his view was the only viable version of events and that anyone who thought differently was an idiot.
Elliott, O’Bryan and junior barrister Michael Symons tried to thwart Jopling’s investigation by threatening him with costs, providing vague answers and delaying the production of documents.
“If O’Bryan was ever challenged, he would always double down,” a colleague says. For smart lawyers, the Elliott team were particularly dumb. Jopling was exactly the wrong type of person to bully.
They could have negotiated a compromise. They could have said that because Botsman was being so stubborn with her court action, they would compromise, taking a smaller slice of the pie to allow their elderly Banksia clients to get their money.
Instead, it was the courtroom version of the Gunfight at the O.K. Corral. But one key player was not there. The architect of the whole dodgy scheme had died unexpectedly.
It was reported that on February 13, Mark Elliott was found dead on a property in Flinders. A police report into the death found there was no foul play.
On July 27, in front of Supreme Court Justice John Dixon, the final act in this legal tragedy began.
There were 13 lawyers including five Silks representing all parties. Legal fees were likely to run at more than $100,000 a day.
In one document, O’Bryan quipped he charged less than Jopling. The difference was Jopling was earning his fee. Behind the scenes, some legal heavyweights tried to persuade Jopling not to rock the boat, but he would not be deterred.
When Jopling took the stage (it was a remote hearing due to lockdown), he told Justice Dixon he would provide a helicopter view. In reality, he took a flamethrower to O’Bryan, the late Elliott and Symons. He told the court the team had spent years deceiving courts and had misled seven Supreme Court judges.
“It was Mr Elliott’s idea. Mr O’Bryan joined him in as an equal co-venturer and Mr Symons was their willing and active recruit,” Jopling said.
“The most striking feature of the course of conduct they pursued was that it involved each of them as lawyers acting dishonestly and without any regard to their duties, to their clients or their paramount duty to this court.
“The business model of AFPL and the lawyer parties was to make demands for costs that had no basis in fact and then to come up with bills to support these demands … This was a party like no other.”
In his clipped and cultured voice, Jopling explained how Elliott wanted to charge $20 million and how legal bills were fabricated. He even read a text from Elliott of plans to “double-cross” the receivers who had done the bulk of the work.
“Whenever anybody got in the way of the $20 million that they were trying to seize for themselves from this litigation, Elliott, O’Bryan and Symons turned to threats and intimidation.”
Jopling said that far from getting nearly $20 million, they should get nothing, pay compensation to their clients and shoulder the legal costs.
The question was how would the brilliant bareknuckle O’Bryan, the dux of every class, the lawyer who always doubled down, respond?
No one saw it coming. Trapped in Jopling’s vice-like grip, O’Bryan “tapped the mat” and conceded.
O’Bryan’s lawyer, David Batt, QC, told the court his client would not dispute the claims against him, would accept any financial punishment ordered against him and would not pursue any fees for the Banksia claim. He also accepted he could no longer practise as a barrister and should be struck off.
A few days later, he returned his Order of Australia.
Symons followed, issuing a similar statement accepting that he was finished as a barrister.
Why did O’Bryan surrender? Perhaps, he finally saw that, blinded by greed, he had failed to act in the interest of his clients, perhaps he saw a legal bill of more than $3 million at the end of a trial that he was bound to lose, or perhaps he knew that to try to maintain the Elliott-inspired fantasy would require him to give perjured evidence in the court where his father and grandfather had presided with such distinction.
John Silvester is a Walkley-award winning crime writer and columnist. A co-author of the best-selling books that formed the basis of the hit Australian TV series Underbelly, Silvester is also a regular guest on 3AW with his “Sly of the Underworld” segment.