Berger v Council of the Law Society of New South Wales

This matter concerned an application by Victor Berger for an extension of a stay on the suspension of his solicitor's practising certificate. The suspension had been imposed by the Council of the Law Society of New South Wales due to alleged misappropriation of funds. An appeal against the Law Society's decision had been dismissed by the Supreme Court, and a further appeal to the Court of Appeal was pending. The existing stay, which had been in force since the commencement of the Supreme Court proceedings, was due to expire shortly.

The primary legal issue before the Court of Appeal was whether the stay of the suspension of Mr. Berger's practising certificate should be extended until the hearing of his further appeal to the Court of Appeal. This required the court to consider the balance of convenience and the potential prejudice to both Mr. Berger and the Law Society, as well as the public interest, in granting or refusing the extension.

Barrett JA considered the undertakings previously given by Mr. Berger and the conditions imposed on his practice. The court reasoned that extending the stay, subject to stringent conditions and undertakings, would allow the appeal to be heard without undue prejudice to the Law Society or the public, while preserving Mr. Berger's ability to continue practising, albeit under strict supervision. The court noted that the Law Society retained liberty to apply to terminate or vary the stay on short notice.

The court ordered that the suspension of Mr. Berger's practising certificate be stayed up to and including 8 October 2013, provided Mr. Berger gave undertakings to the court, mirroring those previously given, and complied with a list of specific conditions relating to his practice. These conditions included restrictions on acting under power of attorney or as an executor, requirements for notice before deducting fees from trust accounts, depositing all client funds into the trust account, limitations on accepting fee payments, weekly notification to the Law Society of trust account balances and client balances, and practising only under the supervision of a named solicitor. The costs of the stay application were made costs in the appeal.