Berger v Council of the Law Society of New South Wales [2013] NSWCA 278

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Berger v Council of the Law Society of New South Wales [2013] NSWCA 278 Hearing dates: 26 August 2013 Decision date: 28 August 2013 Before: Barrett JA Decision: (1)Upon (a)the applicant Victor Berger by his counsel again giving to the Court the undertakings given before Schmidt J on 9 July 2013 so as to be operative up to and including 8 October 2013; and (b)the following conditions (which shall likewise be operative up to and including 8 October 2013), namely: (i)that the applicant shall not act under any power of attorney or as an executor; (ii)that the applicant shall not deduct any amount from his practice's trust account on account of his legal fees unless he has provided two working days' notice together with supporting material to the Law Society of New South Wales and to any external accountant of his practice; (iii)that the applicant will deposit all proceeds of sale of any property, or any other funds that come within his control for the benefit of a client, into his practice's trust account; (iv)that the applicant will not accept any payment from any client on account of his legal fees unless either the payment originates from funds held in his practice trust account and is paid out in a manner that complies with condition (ii) or is a direct payment of legal fees in respect of an invoice and the payer is his client; (v)that at or before 5pm on each Friday (commencing on Friday 30 August 2013) the applicant will notify the Law Society of New South Wales of the balance of the trust account of his practice and the amounts outstanding to the benefit of each of his clients; and (vi)that the applicant will not practise as a solicitor otherwise than under the supervision of Aaron Tibor Morgenstern, solicitor, order that the suspension of the applicant's practising certificate by resolution passed by the Council of the Law Society of New South Wales on 1 July 2013 be stayed up to and including 8 October 2013. (2)Grant liberty to the Law Society of New South Wales to apply on 24 hours notice for an order terminating or varying the stay. (3)Order that the costs of the stay application determined by me be costs in the appeal. [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 - solicitor's practising certificate suspended by resolution of the Council of the Law Society - alleged misappropriation of funds - appeal to the Supreme Court against the Law Society's decision dismissed - further appeal to the Court of Appeal pending - that appeal to be heard in the relatively near future - stay of the suspension in force since start of Supreme Court proceedings but about to expire - whether the stay should be extended until the hearing of the appeal. Legislation Cited: Legal Profession Act 2004, s 548 Cases Cited: Berger v Council of the Law Society of NSW [2013] NSWSC 1080 Doherty v The Law Society of New South Wales [2008] NSWCA 269 New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83], [91] Robb v Law Society of the Australian Capital Territory (Federal Court of Australia, 21 June 1996, unreported) Category: Interlocutory applications Parties: Victor Berger (Applicant) Council of the Law Society of New South Wales (Respondent) Representation: Counsel: I E Davidson SC/PD Reynolds (Applicant) Ms J S Gleeson SC (Respondent) Solicitors: Remington & Co (Applicant) Law Society of New South Wales (Defendant) File Number(s): CA 2013/253352