Doherty v The Law Society of New South Wales [2003] NSWSC 464

New South Wales Supreme Court

CITATION : Doherty v The Law Society of New South Wales [2003] NSWSC 464 HEARING DATE(S) : 23 May 2003 JUDGMENT DATE : 2 June 2003 JURISDICTION: Common Law JUDGMENT OF : Studdert J DECISION : The plaintiff to pay the first defendant's costs in the proceedings; no order as to costs of the second defendant.

CATCHWORDS : Legal practitioners - appeal against resolution of Law Society refusing application for practising certificate - order made for issue of certificate subject to conditions - application by Law Society for order for costs in its favour - whether such an order should be made - relevance of manner in which Society conducted itself in the proceedings. LEGISLATION CITED : Legal Profession Act ss 61, 62 Supreme Court Act s 76 CASES CITED : Doherty v The Law Society of New South Wales [2003] NSWSC 105 Gersten v The Law Society [2003] NSWCA 39 Peter Doherty (Plaintiff) PARTIES : The Law Society of New South Wales ACN 000 000 699 (First Defendant) Andrew Stuart Brown (Second Defendant) FILE NUMBER(S) : SC 13117/02 COUNSEL : I.M. Wales SC (Plaintiff) R.I. Bellamy (Defendants) SOLICITORS : Stewart Cuddy & Mockler (Plaintiff) Raymond John Collins (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

STUDDERT J

Monday 2 June 2003

13117/02 PETER DOHERTY v THE LAW SOCIETY OF NEW SOUTH WALES ACN 000 000 699 & ANOR

JUDGMENT 1 HIS HONOUR: On 28 February last I delivered judgment in proceedings brought before this Court by the plaintiff by way of summons: Doherty v The Law Society of New South Wales [2003] NSWSC 105. I reserved the question of costs of those proceedings at that time and on Friday, 23 May 2003 I heard submissions on the issue of costs. 2 It was submitted by the Law Society (the first defendant on the summons) that the plaintiff should be ordered to pay the costs of the Society. The plaintiff opposed the making of such an order although it was not contended on his behalf that the plaintiff should have an order for costs in his favour. Rather, Mr Wales of Senior Counsel for the plaintiff, submitted that the Court should order each party to pay his and its own costs. 3 The second defendant joined in the proceedings on the summons was joined as the manager of the practice. No submissions have been made concerning his costs. From a practical point of view, it was the first defendant which resisted the plaintiff's summons and it is appropriate that no order be made as to the costs of the second defendant. 4 Under s 76 of the Supreme Court Act costs are in the discretion of the Court. It was not contended by either the plaintiff or the Society that the position was otherwise. Whilst costs ordinarily follow the event, there is not, nor could there be, a rigid rule to that effect. 5 In the present case the plaintiff succeeded on the summons to the extent that an order was made that he be issued with a practising certificate expressed to be subject to conditions which were to apply to any practising certificate held by the plaintiff during a period of two years from the date of judgment. Why then should the plaintiff be ordered to pay the costs of the Society incurred in these proceedings? 6 A number of considerations were put forward by Mr Bellamy to support his submission that such an order for costs should be made: