Berger v Council of the Law Society of NSW (No 3) [2013] NSWSC 1268

Supreme Court New South Wales

Medium Neutral Citation: Berger v Council of the Law Society of NSW (No 3) [2013] NSWSC 1268 Hearing dates: 19 and 22 July 2013 Decision date: 09 September 2013 Jurisdiction: Common Law Before: Beech-Jones J. Decision: Plaintiff pay defendant's costs of the proceedings. Catchwords: COSTS - no question of principle. Cases Cited: - A Solicitor v Council of the Law Society of New South Wales [2013] NSWSC 921 - Berger v Council of the Law Society of NSW [2013] NSWSC 1080 - Berger v Council of the Law Society of NSW (No 2) [2013] NSWSC 1131 Category: Costs Parties: Victor Berger (Plaintiff) Council of the Law Society of New South Wales (Defendant) Representation: Counsel: I.E. Davidson SC, P.D. Reynolds (Plaintiff) Ms J.S. Gleeson SC (Defendant) Solicitors: Remington & Co (Plaintiff) Law Society of NSW (Defendant) File Number(s): 2013/205134

Judgment 1On 14 August 2013 I published my principal judgment in these proceedings (Berger v Council of the Law Society of NSW [2013] NSWSC 1080). I set aside the decision to appoint a manager to the law practice previously conducted by Mr Berger and two other partners, but upheld the decision to suspend Mr Berger's practising certificate. In relation to costs I stated (at [139]): "It would ordinarily follow that Mr Berger should pay the Law Society's costs of the proceedings on a party/party basis. However if either party seeks a different form of costs order then they should send a submission to that effect to my associate and the other party on or before 28 August 2013, such submission not to exceed three pages. Failing the receipt of any such submission, I will make an order that Mr Berger pay the Law Society's costs." 2The Law Society did not provide any such submission, presumably because it does not seek any costs order different to that which was foreshadowed. However a submission was filed on behalf of Mr Berger. On his behalf it was contended that three matters warranted a different form of costs order(s). 3First, Mr Berger pointed to his success in obtaining a stay from Schmidt J on 9 July 2013 over the opposition of the Law Society (A Solicitor v Council of the Law Society of New South Wales [2013] NSWSC 921). He seeks a separate order for his costs in respect of that application. Understandably no costs order was made by Schmidt J at the time that stay was granted. In the ordinary course and in the absence of any unreasonable conduct by either party, the costs of such an application could be expected to be each party's costs in the cause. In the events that transpired the Law Society's position was in substance vindicated. In my view its costs of the proceedings should include the costs of that application. 4Second, Mr Berger points to the success he achieved in overturning the decision to appoint a manager to his former law practice. I explained the reasons for this in the principal judgment at [3]. As best as I can ascertain, there was almost no part of the preparation for the hearing which was solely referable to the question of whether or not the Law Society's decision to appoint a manager should be set aside or upheld. Instead it appears to have been treated by the parties as co-extensive with the decision to suspend Mr Berger's practising certificate. Mr Berger's success on this point does not warrant any different form of costs order to the one foreshadowed in the principal judgment. 5Third, Mr Berger also seeks the costs of the further stay that I ordered on 15 August 2013 pending his making an application to the Court of Appeal (Berger v Council of the Law Society of NSW (No 2) [2013] NSWSC 1131). The stay was granted over the opposition of the Law Society. Conceptually the costs of this are no different to the costs of the stay granted by Schmidt J. The need for a stay only arose because the Law Society succeeded on the substantive hearing. The stay was only granted to facilitate Mr Berger exercising his right of appeal and thereby test the correctness of the principal judgment. Thus, absent any disentitling conduct by either party, of which there was none, the costs of that application should be part of the costs of the substantive proceedings. As the Law Society succeeded it should recover them. Of course, in the event that Mr Berger succeeds on appeal then a different costs consequence may follow. 6Accordingly, the Court orders: (1)The plaintiff pay the defendant's costs of the proceedings, including the stay applications heard on 9 July 2013 and 15 August 2013.