Burrows v Council for the Law Society of New South Wales (No 2)

1. [1]

   On 2 March 2018, I gave reasons for conclusions which I reached on 23 February, that while the Law Society’s production of the documents in question in answer to the subpoena issued by Ms Burrows involved a waiver of its rights under s 468 of the Legal Profession Uniform Law 2014 (NSW), Ms Burrows was still not entitled to have access to the documents, because they were privileged under s 118 of the Evidence Act 1995 (NSW): Burrows v Council for the Law Society of New South Wales [2018] NSWSC 235.

2. [2]

   I then overlooked resolving what lay in issue between the parties as to costs, which I now deal with.

3. [3]

   The usual order as to costs under the Uniform Civil Procedure Rules 2005 (NSW) is that they follow the event: Rule 42.1. The Court undoubtedly, however, has a discretion to depart from the usual order under s 98 of the Civil Procedure Act 2005 (NSW).

4. [4]

   Ms Burrows’ case was that while the Law Society had succeeded on the fundamental question of whether she could have access to the documents, there should be a departure from the usual rule on this occasion, because the argument which the Law Society had advanced under s 468 had not succeeded.

5. [5]

   I have not been persuaded that this provides a just basis to depart from the usual order.

6. [6]

   The real issue lying between the parties which the Court was called on to resolve was whether Ms Burrows was entitled to have the access to the documents which she pursued. She failed on that issue.

7. [7]

   Irrespective of whether or not by its own acts the Law Society had waived its undoubted privilege under s 468, on the unchallenged evidence of Ms Foord, the Society’s Director Professional Standards and a lawyer, the documents contained confidential communications made for the dominant purpose of her giving the Society advice about resolutions which it came to consider about Ms Burrows.

8. [8]

   Having accepted, as was urged for Ms Burrows, that I should inspect the documents, there being a possibility, it was contended, that they themselves revealed that what Ms Foord had provided was administrative in nature, rather than legal advice, that inspection established only that her evidence had to be accepted. In the result there could be no question that the documents were, indeed, privileged.

9. [9]

   Accordingly, this was not a situation where Ms Burrows succeeded on what was in issue, namely, her claimed right to be given access to the subpoenaed documents. Nor was it suggested that the argument which the Law Society had advanced in relation to s 468 had been unreasonably pursued.

10. [10]

    In all of those circumstances, I am satisfied that there should be no departure from the usual costs order.

Order

1. [11]

   For those reasons I order that Ms Burrows must bear the Law Society’s costs of the determination of the access issue, as agreed or assessed.