Berger v Council of the Law Society of New South Wales [2019] NSWCA 119

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Berger v Council of the Law Society of New South Wales [2019] NSWCA 119 Hearing dates: 18 and 19 October 2018 Date of orders: 23 May 2019 Decision date: 23 May 2019 Before: Meagher JA at [1], Payne JA at [2], Simpson AJA at [381] Decision: (1) Appeal dismissed. (2) Mr Berger to pay the costs of the Law Society of the appeal. Catchwords: OCCUPATIONS – legal practitioners – penalty appeal – whether the Tribunal erred in removing the solicitor's name from the roll – failure to make costs disclosures and provide costs agreement to clients – causing deficiencies in trust account – misappropriation of trust monies – applying received monies in breach of the terms of agreement under which they were received – overcharging – purporting to act as executor when no grant of probate – purporting to act as attorney when donor of power was deceased – breach of costs disclosure undertakings given to Legal Services Commissioner – failure to comply with Supreme Court order – Legal Profession Act 2004 (NSW) – Legal Profession Act 1987 (NSW)

OCCUPATIONS – legal practitioners – whether a case of dishonesty had been pleaded or conducted – whether findings made by the Tribunal of dishonesty were open – whether findings made by the Tribunal that the appellant knew he was acting dishonestly were open Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Schs 1, 4, 5 Legal Profession Act 1987 (NSW), s 180 Legal Profession Act 2004 (NSW), ss 254, 255, 259, 309, 310, 311, 312, 316, 317, 328, 368, 370, 372, 393, 496, 497, 562 Legal Profession Uniform Law (NSW), Sch 4 Probate and Administration Act 1898 (NSW), s 61 Supreme Court Act 1970 (NSW), ss 48, 75A Uniform Civil Procedure Rules 2005 (NSW), rr 51.36, 51.53 Cases Cited: Achurch v The Queen (2014) 253 CLR 141; [2014] HCA 10 Atwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Council of the Law Society of NSW v Doherty [2010] NSWCA 177 Dupal v The Law Society of New South Wales [1990] NSWCA 56 Ex parte Lenehan (1948) 77 CLR 403; [1948] HCA 45 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Johns v Law Society of New South Wales [1982] 2 NSWLR 1 Konstantinidis v Council of the Law Society of New South Wales [2018] NSWCA 59 Kumar v Legal Services Commissioner [2015] NSWCA 161 Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24 New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 O'Connor v Fitti [2000] NSWSC 540 Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7 Pham v Legal Services Commissioner [2016] VSCA 256 Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 R v Ghosh [1982] QB 1053 Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36 Category: Principal judgment Parties: Victor Berger (Appellant) Council of the Law Society of New South Wales (Respondent) Representation: Counsel: D A Lloyd / M Kalyk (Appellant) B Tronson / M Nesbeth (Respondent)