Berger v Council of the Law Society of New South Wales

[2013] NSWCA 336

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Berger v Council of the Law Society of New South Wales [2013] NSWCA 336

Hearing dates:

8 October 2013

Decision date:

08 October 2013

Before:

Bathurst CJ at [1]; Beazley P at [7]; Ward JA at [8]

Decision:

1. Leave to appeal refused with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

LEGAL PRACTITIONERS - suspension of practising certificate - whether suspension should be stayed pending appeal.

Legislation Cited:

Legal Profession Act 2004, ss 504, 548

Category:

Procedural and other rulings

Parties:

Victor Berger (Applicant)
Council of the Law Society of New South Wales (Respondent)

Representation:

Counsel:
M J Neil QC and P Reynolds (Applicant)
J Gleeson SC and B J Tronson (Respondent)
Solicitors:
Remington & Co (Applicant)
Law Society of New South Wales (Respondent)

File Number(s):

2013/253352

Publication restriction:

No

 Decision under appeal 

Jurisdiction:

9111

Citation:

[2013] NSWSC 1080

Date of Decision:

2013-08-14 00:00:00

Before:

Beech-Jones J

File Number(s):

2013/205134

Judgment

(Ex tempore - revised 18 October 2013)

1. BATHURST CJ: This is an application for leave to appeal from a judgment of BeechJones J, upholding a decision of the respondent made under s 548 of the Legal Profession Act 2004 (Act) following the making of a complaint by the respondent against the applicant under s 504 of the Act. The primary judge in a careful judgment found that it was necessary in the public interest that the applicant's practising certificate be suspended. Accordingly, his Honour dismissed the appeal brought against the respondent's decision.

1. Although the draft notice of appeal challenged the primary judge's factual findings and his conclusion, ultimately the grounds of appeal were abandoned save to the extent that it was contended that the public interest would be served if leave to appeal was granted and the appeal be allowed on the basis that undertakings proposed to be given to the Court would provide adequate protection to the public pending determination of the complaint by the Administrative Decisions Tribunal. The undertakings in question were embodied in undertakings or conditions permitting temporary stays made first by Schmidt J, then by BeechJones J and finally by Barrett JA in this Court.

1. I do not believe it is appropriate to grant leave to appeal in the present case. Once it was accepted that the primary judge was entitled to make the factual findings made by him and his approach to the issues did not disclose any error of law, it follows that there is no basis for allowing the appeal and leave to appeal should be refused.

1. Further, in light of the serious factual findings made by the primary judge, it could not be said that his discretion miscarried in holding that it was necessary in the public interest to suspend the applicant's practising certificate notwithstanding the proffering of undertakings or conditions.

1. In these circumstances, in my opinion leave to appeal should be refused.

1. The applicant should pay the respondent's costs of the application for leave to appeal.

1. BEAZLEY P: I agree with the Chief Justice.

1. WARD JA: I agree with the Chief Justice.

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Decision last updated: 18 October 2013