Gersten v The Law Society

[2003] NSWCA 39

CITATION:	GERSTEN v THE LAW SOCIETY [2003] NSWCA 39
HEARING DATE(S):	Written submissions
JUDGMENT DATE:	21 March 2003
JUDGMENT OF:	Handley JA at 1; Stein JA at 1; Davies AJA at 1
DECISION:	Written submissions. Orders for costs made
CASES CITED:	Ex parte Lenehan (1948) 77 CLR 403, 425 Johns v Law Society (CA NSW u/r 6/6/91) Ex parte Davis (1962) 63 SR (NSW) 54, (1963) 109 CLR 428 Ziems v The Prothonotary (1957) 97 CLR 279
PARTIES :	JOSEPH MORRIS GERSTEN v THE LAW SOCIETY OF NEW SOUTH WALES
FILE NUMBER(S):	CA 41007/01
COUNSEL:	Appellant - Paul Brereton SC Respondent - John Griffiths SC/ Nicholas Beaumont
SOLICITORS:	Appellant - Oliveri Attorneys Respondent - Raymond John Collins

LOWER COURTJURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	CLD 10125/99
LOWER COURT JUDICIAL OFFICER :	James J

41007/01
CLD 10125/99
HANDLEY JA
STEIN JA
DAVIES AJA


21 March 2003

JOSEPH MORRIS GERSTEN v THE LAW SOCIETY OF NEW SOUTH WALES

Judgment on Costs

(written submissions)

1 THE COURT: On 22 November 2002 this Court published its reasons for judgment and made orders, other than orders for costs, disposing of the appeal. During argument on the appeal the parties had joined in asking this Court to defer making orders as to costs until they had had an opportunity to consider our reasons and orders.

2 Following the publication of reasons for judgment directions were given for the filing of written submissions and the last of these was received on 6 February.

3 James J, who dismissed the appellant’s application under SCR Pt 65A r 3, ordered the appellant to pay the Law Society’s costs of the proceedings. Since the substantive decision at first instance has been set aside, and an order granting the appellant’s application has been substituted, this Court must now re-exercise the discretion of the primary Judge as to costs.

4 The proceedings at first instance took 19 days between February and July 2001 and the appellant’s application was strongly contested. The Law Society however appeared in the proceedings to safeguard the standards of the profession in the public interest and for the protection of the public. See paras 51-4 of this Court’s reasons of 22 November 2002. We have not been persuaded that the Law Society stepped outside this role. It follows that this was not adverse litigation in the ordinary sense.

5 Counsel for the Law Society submit that an application under SCR Pt 65A r 3 for an “otherwise order” lifting the automatic suspension under the rule is analogous to an application for re-admission by a former practitioner who has been struck off for misconduct. In such a case the Court will ordinarily order the applicant for re-admission to pay the costs of the Law Society or Bar Association. See Ex parte Lenehan (1948) 77 CLR 403, 425; Johns v Law Society (CA NSW u/r 6/6/91) and Ex parte Davis (1962) 63 SR (NSW) 54, not affected on this point by the…