The Law Society of New South Wales v Attorney General of New South Wales; ABC Insurance Pty Ltd v The Law Society of New South Wales [2024] NSWCA 90

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: The Law Society of New South Wales v Attorney General of New South Wales; ABC Insurance Pty Ltd v The Law Society of New South Wales [2024] NSWCA 90 Hearing dates: 2 April 2024 Date of orders: 23 April 2024 Decision date: 23 April 2024 Before: Bell CJ; Meagher JA; Harrison CJ at CL Decision: The separate questions stated by Harrison CJ at CL on 8 March 2024 (2024/79043; 2024/90355) for determination by the Court of Appeal pursuant to r 28.2 of the Uniform Civil Procedure Rules (NSW) be answered as follows: Question 1 Can the Law Society of New South Wales grant or renew a practising certificate under s 44 and s 45 of the Legal Profession Uniform Law (NSW) (LPUL) if the applicant: (a) does not have or will not have on or before the grant or renewal, professional indemnity insurance approved by the Attorney General of New South Wales pursuant to s 95 of the Legal Profession Uniform Law Application Act 2014 (NSW); and (b) is not exempt from the requirement to hold or be covered by professional indemnity insurance pursuant to the LPUL or the Legal Profession Uniform General Rules 2015 (NSW)? Answer No, provided the Attorney General has approved at least one insurance policy under s 95(2) of the Legal Profession Uniform Law Application Act 2014 (NSW) for a class of entities that includes the applicant for the practising certificate. Question 2 If the answer to Question 1 is yes: (a) is the ABC Insurance Professional Indemnity Insurance Policy for Solicitors in Australia – 1 January 2024 (the ABC policy) a policy of professional indemnity insurance issued or provided by an insurer authorised by APRA under the Insurance Act 1973 of the Commonwealth to carry on insurance business in Australia, within the meaning of s 210(1)(a)(ii)(A) of the LPUL; and (b) does the ABC policy comply with the minimum standards specified in the Uniform Rules for the purpose of s 210 of the LPUL, as required by s 210(1)(b)(i) of the LPUL? Answer This question does not arise as the proviso to the answer to Question 1 is satisfied with respect to a policy for the 2024-2025 practising year. Catchwords: INSURANCE – liability insurance – professional indemnity insurance – legal practitioners' "approved insurance policy" for purposes of s 210 of Legal Profession Uniform Law (NSW) – whether s 95(2) of Legal Profession Uniform Law Application Act 2014 (NSW) confers power on Attorney General to approve insurer under policy – whether, for purposes of s 210(1)(a), s 95 is a "legislative arrangement for the approval or selection of insurers" Legislation Cited: Legal Practice Act 1996 (Vic), s 234 Legal Profession Act 1987 (NSW), ss 38R, 40, 41, 46 Legal Profession Act 2004 (NSW), ss 403, 406 Legal Profession Act 2004 (Vic), ss 3.5.2, 3.5.6, 6.2.1, 6.6.3, 6.6.19 Legal Profession Uniform General Rules 2015 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW), ss 3, 11, 37, 94, 95 Legal Profession Uniform Law Application Act 2014 (Vic), ss 4, 13, 102, 118, 120 Legal Profession Uniform Law Application Regulation 2015 (NSW), reg 4(2) Legal Profession Uniform Law (NSW), ss 3, 43, 44, 45, 209, 210, 211, Pt 8.2 Legal Profession Uniform Law (Vic), Pt 4.4 Supreme Court Act 1970 (NSW), s 51(1) Cases Cited: Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453; [1995] HCA 44 Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24 R v Seller [2013] NSWCCA 42; (2013) 273 FLR 155 Texts Cited: Bilateral Agreement on the Legal Profession Uniform Framework (5 December 2013) Explanatory Note, Legal Profession Uniform Law Application Bill 2014 (NSW) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 27 March 2014 Category: Principal judgment Parties: 2024/107445: