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[2025] NSWCA 182
procedural. Application dismissed with costs. The Court declined to vary the order requiring ABC Insurance to pay the Law Society’s costs of the proceedings.
ABC Insurance lost on the principal question argued in the joined proceedings and was ordered to pay the Law Society’s costs. It later asked the Court to remove that order or limit the period covered. The Court said costs issues should generally be addressed at the appeal hearing, and it found that ABC Insurance’s arguments did not establish a reason to reopen the costs decision. The application was dismissed with costs.
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2,331 words · generated 06/10/2026
This is a short post-judgment costs decision by the NSW Court of Appeal, not a fresh determination of the substantive insurance questions. The Court’s reasons assume familiarity with the earlier judgment delivered on 9 August 2024 in joined proceedings: The Law Society of New South Wales v Attorney General of New South Wales; ABC Insurance Pty Ltd v The Law Society of New South Wales [2024] NSWCA 90 ([1]–[2]).
6 cited instruments linked from this judgment.
The joined matters arose from a dispute about professional indemnity insurance for NSW legal practitioners. The Law Society had brought proceedings against the Attorney General. ABC Insurance brought separate proceedings against the Law Society and had a commercial interest in the outcome, because it sought to promote the availability of its proposed policy ([3]–[5]). The two proceedings raised similar issues and were ordered to be heard together ([5]).
The Court answered Question 1 in the negative, subject to a proviso. In substance, the answer was that the Law Society could not grant or renew a practising certificate to an applicant lacking approved professional indemnity insurance, provided the Attorney General had approved at least one policy under s 95(2) of the Legal Profession Uniform Law Application Act 2014 (NSW) for a class including that applicant ([6]). The Court did not answer Question 2 about whether the ABC policy met specified statutory and minimum-standard requirements, because that question did not arise on the answer given to Question 1 ([6]).
The Attorney General did not seek costs. As between ABC Insurance and the Law Society, the Court ordered ABC Insurance, as the unsuccessful party, to pay the Law Society’s costs ([8]). ABC Insurance then filed a motion seeking to vary that costs order under UCPR r 36.16(1), alternatively r 36.16(3A). It sought either no order as to costs or an order limiting its liability to costs incurred from 22 March 2024 ([9]).
The Court dismissed the motion with costs. It concluded that there was no reason to depart from or vary the original costs order ([20]).
The reasons centre on when parties should raise costs issues. The Law Society submitted that costs should ordinarily be addressed at the hearing, rather than through a later application. The Court quoted the principle from Fuller v Albert (No 2) [2021] NSWCA 183 at [31]: parties should address foreseeable costs outcomes at the appeal hearing and should not assume they will have another opportunity after judgment. If later submissions are needed, the party should seek leave in special circumstances ([10]).
The Court identified several examples that may amount to special circumstances. One is where a Calderbank offer or formal offer of compromise cannot appropriately be disclosed until after the appeal outcome and reasons are published. Another is where it would not be appropriate to introduce relevant material before reasons are published, or where the reasons reveal a costs-relevant misapprehension caused by oversight or inadvertence. The Court also identified complex cases involving multiple issues or parties, where numerous possible combinations of outcomes make it unproductive to address every hypothetical costs result at the hearing. In such a case, the parties would ordinarily indicate during the appeal that they seek to make costs submissions after reasons are published ([11]). The Court said this case did not fall into those categories ([12]).
The applicant relied on three broad arguments ([13]). First, it characterised the Law Society’s proceedings as being brought in discharge of regulatory responsibilities and for a non-adversarial purpose, by analogy with a neutral applicant seeking directions. The Court held that this point could and should have been raised in submissions during the principal hearing, but was not ([14], [17]). The reason was procedural: this later application was not the appropriate occasion to advance an argument that could have been addressed when the Court considered costs in the first place.
Second, ABC Insurance argued that the Law Society had not truly succeeded because the Court accepted arguments advanced by the Attorney General. The Court considered this account incomplete. The Law Society had adopted the Attorney General’s submissions in the alternative and had contended for a negative answer to Question 1, which was the outcome reached. The Court also described the proceedings, as conducted in the Court of Appeal, as adversarial. ABC Insurance participated to advance its commercial interests ([18]). The fact that another party made the same successful argument did not mean the Law Society had failed to obtain the outcome for which it contended.
Third, ABC Insurance argued that the substantive issue in its own proceeding was Question 2, which the Court did not reach. The Court noted, however, that ABC Insurance had been fully involved in Question 1: it filed 20 pages of written submissions, the Law Society replied, and ABC Insurance’s counsel made extensive oral submissions. ABC Insurance also filed separate detailed submissions on Question 2, which became relevant only if it succeeded on Question 1 ([19]). The Court rejected the suggestion that the costs associated with Question 2 should therefore be excluded. The fact that the contingent question did not arise did not, in this case, require excision of those costs ([19]).
The Court’s approach was consequently both procedural and case-specific. It emphasised the normal timing for costs submissions, then considered the applicant’s three reasons for varying the order and found none sufficient ([17]–[20]).
This decision presents the Court’s costs-submissions practice as an existing procedural approach, rather than announcing a new rule. It relies on Fuller, which states that the appeal hearing is the usual occasion for costs submissions, and on Hollingsworth, which had referred to that approach ([10]). The judgment also refers to Aktas v Westpac Banking Corporation Ltd (No 2) (2010) 241 CLR 570; [2010] HCA 47 within the quoted passage from Fuller ([10]). The present Court’s focus is on applying that practice to ABC Insurance’s later motion.
The decision clarifies, by example, that “special circumstances” are not confined to one kind of case. It lists circumstances involving offers, material that should not be introduced before reasons are published, a relevant oversight or inadvertence in the reasons, and complex proceedings with many possible costs outcomes ([11]). These are examples, not a closed list: the Court says there “may be other types of cases” and that complex cases may be another example ([11]).
The judgment does not state that a party is barred from seeking later costs submissions. Rather, it says parties should not assume a further opportunity will be available, and should seek leave after the outcome is known in special circumstances ([10]). The application here failed because the Court considered the case outside the identified categories and found that the applicant’s main points could have been raised at the hearing ([12], [17]).
The judgment refers to UCPR rr 36.16(1), 36.16(3A) and 42.1, but does not set out their full text or undertake a detailed construction of them ([9], [18]). Its principal reasoning is about the appropriate timing and basis for costs submissions, and the specific arguments put forward in this motion. It should not be read from this text alone as providing an exhaustive account of the operation of those rules.
At [10], the Court quoted Fuller: “The usual occasion for submissions on costs is the hearing of the appeal”. In plain English, the parties are ordinarily expected to explain their costs positions before the Court makes its decision, and to address foreseeable possible outcomes. A party should not assume it can return to argue costs once the judgment has been delivered.
At [11], the Court described special circumstances. The examples include offers that cannot appropriately be disclosed before judgment, material that should not be introduced before reasons are published, and reasons that reveal an oversight or inadvertence relevant to costs. The Court also gave the example of proceedings with many issues, parties and possible outcomes, where submissions on each hypothetical costs result would be unproductive. In that situation, parties should indicate during the appeal that they seek to address costs after reasons are published.
At [18], the Court explained why it did not accept that the Law Society had been unsuccessful merely because the Attorney General advanced the arguments accepted by the Court. The Law Society had adopted those submissions in the alternative and had itself sought the negative answer to Question 1. In plain terms, the Court assessed success by reference to the position the Law Society had taken and the result, not by asking which party first or most prominently advanced the successful reasoning.
At [19], the Court addressed Question 2. Although it did not need to decide that question, ABC Insurance had only needed to succeed on Question 1 for the Question 2 submissions to become relevant. The Court held that this sequence did not justify removing the costs of work on Question 2 from the costs order. The passage is tied to the circumstances of this case and does not state a general rule about all contingent or undecided issues.
At [20], the Court concluded: “we see no reason to depart from or vary the costs order”. This is the operative conclusion. The earlier order requiring ABC Insurance to pay the Law Society’s costs remained in place, and the variation application was dismissed with costs.
The most direct relevance is to a party considering how and when to raise costs in an appeal. The judgment is relevant where costs outcomes can reasonably be anticipated at the appeal hearing, because it says parties should ordinarily address those outcomes then ([10]). It also bears on applications made after judgment where the applicant’s proposed costs arguments could have been presented before the original costs order was made ([17]).
The decision identifies fact patterns that may support a later costs application: an offer that cannot appropriately be disclosed before judgment; material that is unsuitable for introduction before reasons are published; reasons revealing an oversight or inadvertence relevant to costs; or a complicated case with multiple parties and issues producing many possible costs outcomes ([11]). The judgment does not say these circumstances automatically result in a different costs order. It identifies them as examples of circumstances that may justify seeking later submissions.
The decision also addresses a case where a party says that another litigant, rather than the party seeking costs, advanced the successful argument. The Court looked at whether the successful party had adopted or supported that position and whether the applicant had contested the issue ([18]–[19]). Here, the Law Society had supported the successful answer in the alternative, while ABC Insurance had made extensive submissions against it.
Finally, the decision is relevant where a party seeks to separate costs associated with a contingent issue that was not reached. ABC Insurance’s Question 2 submissions were conditional on success on Question 1, but the Court did not consider that enough to excise those costs in this case ([19]). The judgment does not provide a general assessment method for allocating costs issue by issue, so its application beyond the stated circumstances would require care.
This judgment is dated 8 August 2025. The text supplied contains no decisions that post-date it, and therefore provides no evidence about how later courts have treated it. The judgment itself refers to earlier authorities rather than subsequent treatment.
The authorities mentioned in the reasons are used for the Court’s existing approach to costs submissions and special circumstances. Fuller v Albert (No 2) is quoted for the usual timing of costs submissions and the need to address foreseeable outcomes or seek leave in special circumstances ([10]). State of New South Wales v Hollingsworth (No 2) is cited in connection with that practice and with examples of exceptional post-judgment circumstances ([10]–[11]). Novelly v Tamqia Pty Ltd (No 2) is given as an example concerning offers that are not appropriately disclosed until the appeal result and reasons are known ([11]). Dickson v Commissioner of the Australian Federal Police (No 2) is cited in connection with material or a misapprehension relevant to the costs discretion ([11]).
The judgment also records ABC Insurance’s reliance on Preston, in the matter of Sandalwood Properties Ltd (No 2) for its analogy between the Law Society’s proceedings and neutral proceedings seeking directions ([14]). The Court’s reasons do not adopt that authority as establishing the outcome here. Instead, it rejects the applicant’s argument on the basis that it could have been raised during the principal hearing and that the litigation before the Court was adversarial in form ([17]–[18]).
The judgment does not define the full boundaries of “special circumstances”. It gives examples, expressly contemplates other types of cases, and says the current case did not fit the identified categories ([11]–[12]). It does not decide how unusual or complex a case must be before later costs submissions become appropriate, or what precise indication should be given during the appeal beyond saying parties should indicate that they seek later submissions.
Nor does the decision set out a general formula for allocating costs across issues that are decided, contingent, or left unanswered. Its conclusion on Question 2 is that the costs incurred on that work should not be excised in this case, given the sequence of questions and the parties’ submissions ([19]). It does not identify a broader test for separating costs by issue.
The decision also does not comprehensively analyse UCPR rr 36.16(1) and 36.16(3A). It records ABC Insurance’s reliance on those rules and resolves the application by reference to the circumstances, the earlier costs decision, and the usual approach to costs submissions ([9]–[20]). A lawyer considering a different procedural setting would need to examine the applicable rule text and relevant authorities, not assume that this judgment alone resolves every question about the rules.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: ABC Insurance Pty Ltd v The Law Society of New South Wales [2025] NSWCA 182
Hearing dates: On the papers
Date of orders: 08 August 2025
Decision date: 08 August 2025
Before: Bell CJ, Harrison CJ at CL
Decision: Application dismissed with costs.
Catchwords: COSTS – Application to vary costs order – Where respondent successful in outcome of proceedings – Where applicant was an intervenor in one set of proceedings, and applicant in another – Where applicant’s submissions rejected – Orders in relation to costs of appeal should, in the absence of special circumstances, be sought in submissions filed on the appeal – Examples of special circumstances.
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 36.16(1), 36.16(3A), 42.1
Cases Cited: Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111
Fuller v Albert (No 2) [2021] NSWCA 183
Novelly v Tamqia Pty Ltd (No 2) [2024] NSWCA 209
Preston, in the matter of Sandalwood Properties Ltd (No 2) [2018] FCA 816
State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283
Category: Costs
Parties: ABC Insurance Pty Ltd (Applicant)
The Law Society of New South Wales (Respondent)
Representation: Counsel:
S Baron Levi, A Sharpe (Applicant)
S Fitzpatrick SC, M Gvozdenovic (Respondent)
Solicitors:
Meridian Lawyers (Applicant)
Clayton Utz (Respondent)
File Number(s): 2024/107482; 2024/107445
Publication restriction: N/A
THE COURT: On 9 August 2024, the Court, constituted by the Chief Justice, Meagher JA and Harrison CJ at CL, delivered its reasons in respect of two sets of proceedings which were heard together: The Law Society of New South Wales v Attorney General of New South Wales; ABC Insurance Pty Ltd v The Law Society of New South Wales [2024] NSWCA 90 (the Judgment).
These reasons assume a knowledge of the matters in issue in and resolved by the Judgment.
The first proceeding (2024/107445) was commenced by the Law Society of New South Wales (the Law Society) against the Attorney General of New South Wales (the Law Society Proceeding). The second proceeding (2024/107482) was commenced by ABC Insurance Pty Ltd (the Applicant) against the Law Society (the ABC Insurance Proceeding).
The commercial background to the two sets of proceedings was set out in the Law Society’s written submissions (omitting references) for the principal hearing, and is relevant to issues considered in the present judgment:
“For each practising year, LawCover seeks approval from the Defendant for the type and level of professional indemnity insurance (PII) and the terms and conditions applicable to the PII policy pursuant to s 95 of the Application Act, and the Defendant provides its consent. There is no separate instrument approving LawCover as an ‘insurer or other provider’.
On 17 January 2024, the Plaintiff received a letter from the solicitors for ABC Insurance Pty Ltd which stated, amongst other things, that ABC Insurance intended to distribute a PII policy for solicitors practising in NSW for the forthcoming renewal cycle, effective from 1 July 2024, and that the policy to be distributed was an “approved insurance policy” within the meaning of s 210(1)(a)(ii)(A) of the LPUL (Proposed PII Policy).
On 2 February 2024, the solicitors for ABC Insurance sent the solicitors for the Plaintiff an advice issued to ABC Insurance (ABC Advice). That advice referred to an application made by ABC Insurance on 25 November 2022 to the Defendant seeking approval of the Proposed PII Policy.
On 12 February 2024, the solicitors for ABC Insurance informed the Plaintiff that, in November 2022, the then Attorney General (the Honourable Mark Speakman SC MP) had been informed of ABC Insurance’s intention to distribute the Proposed PII Policy, and subsequently in mid-2023, representatives of the current Attorney General (the Honourable Michael Daley MP) were informed of the basis of ABC Insurance’s position.
On 16 February 2024, the Plaintiff sent a letter to the Defendant which requested that his office confirm whether he had approved ABC Insurance’s Proposed PII Policy.
On 20 February 2024, the Plaintiff received a letter from the Defendant confirming that he had received a request to approve the Proposed PII Policy but that a decision had not been made.”
Although the Applicant was not a party to the Law Society Proceeding, it had a plain commercial interest in the outcome of the proceeding as it was seeking to promote the availability of a policy of professional indemnity insurance for legal practitioners in New South Wales. The ABC Insurance Proceeding threw up similar issues as the Law Society Proceeding and it was for this reason that, on 14 March 2024, Harrison CJ at CL, ordered that the proceedings be heard together and removed to the Court of Appeal for the hearing of two separate questions stated by his Honour.
The questions were answered by this Court as follows:
“Question 1
Can the Law Society of New South Wales grant or renew a practising certificate under s 44 and s 45 of the Legal Profession Uniform Law (NSW) (LPUL) if the applicant:
(a) does not have or will not have on or before the grant or renewal, professional indemnity insurance approved by the Attorney General of New South Wales pursuant to s 95 of the Legal Profession Uniform Law Application Act 2014 (NSW); and
(b) is not exempt from the requirement to hold or be covered by professional indemnity insurance pursuant to the LPUL or the Legal Profession Uniform General Rules 2015 (NSW)?
Answer
No, provided the Attorney General has approved at least one insurance policy under s 95(2) of the Legal Profession Uniform Law Application Act 2014 (NSW) for a class of entities that includes the applicant for the practising certificate.
Question 2
If the answer to Question 1 is yes:
(a) is the ABC Insurance Professional Indemnity Insurance Policy for Solicitors in Australia – 1 January 2024 (the ABC policy) a policy of professional indemnity insurance issued or provided by an insurer authorised by APRA under the Insurance Act 1973 of the Commonwealth to carry on insurance business in Australia, within the meaning of s 210(1)(a)(ii)(A) of the LPUL; and
(b) does the ABC policy comply with the minimum standards specified in the Uniform Rules for the purpose of s 210 of the LPUL, as required by s 210(1)(b)(i) of the LPUL?
Answer
This question does not arise as the proviso to the answer to Question 1 is satisfied with respect to a policy for the 2024-2025 practising year.”
The answer to the first question reflected arguments advanced by the Attorney General and supported, albeit in the alternative, by the Law Society. A contrary answer was propounded by the Applicant.
The Attorney General did not seek any order as to costs. As between the Law Society and ABC Insurance, the Court ordered that the Applicant, as the unsuccessful party, should pay the Law Society’s costs of the proceedings.
By notice of motion filed on 5 September 2024, after Meagher JA had retired, the Applicant sought, pursuant to r 36.16(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), or alternatively UCPR r 36.16(3A), a variation of the costs orders such that there be no order as to costs or, in the alternative, that “ABC Insurance Pty Limited pay the Law Society of New South Wales’ costs of the proceedings from 22 March 2024”. The date 22 March 2024 was just over a week after Harrison CJ at CL had made the orders referred to in [5] above.
The Law Society contended that, ordinarily, costs issues should be addressed during the hearing rather than through subsequent separate applications, citing State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 at [22] (Hollingsworth), which in turn referred to this Court’s statement in Fuller v Albert (No 2) [2021] NSWCA 183 at [31]:
“The usual occasion for submissions on costs is the hearing of the appeal and parties should not assume that they will necessarily be given a further opportunity to make such submissions once a judgment is delivered (see Aktas v Westpac Banking Corporation Ltd (No 2) (2010) 241 CLR 570; [2010] HCA 47 at [6]-[7]). If they wish to make submissions on costs, they should either do so at the hearing of the appeal, addressing the foreseeable possible outcomes, or in special circumstances seek leave to make costs submissions after the outcome is known.”
Special circumstances will most obviously include cases where Calderbank offers or formal offers of compromise have been made under the Supreme Court Rules that are not appropriately disclosed until the outcome of the appeal has been pronounced and reasons published: see, for example, Novelly v Tamqia Pty Ltd (No 2) [2024] NSWCA 209. There may be other types of cases where it is not appropriate to seek to introduce material relevant to the exercise of the costs discretion prior to the publication of reasons, or where those reasons disclose a misapprehension relevant to the exercise of the costs discretion as a result of oversight or inadvertence on the Court’s part: Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111 at [4]; Hollingsworth at [20]. Another example of special circumstances may be a complex case where there are multiple issues and or multiple parties such that there is a host of possible permutations and costs outcomes with the consequence that it is unproductive to make costs submissions on a large range of hypothetical outcomes. In such cases, it is usual and appropriate for parties to indicate to the Court during the course of the appeal that, because of the range of possible permutations, they would seek to make submissions on costs after the publication of reasons.
The present case does not fall within any of these categories of case and the Law Society contended that, given the Applicant had provided three rounds of written submissions, it could not have held a reasonable expectation to provide further submissions as to costs after the hearing.
The Applicant advanced three broad arguments in support of the costs application.
First, that the Law Society had brought the proceedings in the discharge of its regulatory obligations, and that the proceedings brought against the Attorney General were brought for a “non-adversarial objective”, analogous to “that of a neutral applicant seeking judicial directions, akin to receivers or administrators acting in the interests of proper administration”: citing Preston, in the matter of Sandalwood Properties Ltd (No 2) [2018] FCA 816 at [20]–[22].
Second, the Applicant contended that, while it had been unsuccessful, the Law Society had not been successful as the arguments ultimately accepted by the Court were those advanced on behalf of the Attorney General.
Third, the Applicant submitted that the substantive issues raised by the ABC Insurance Proceeding was that reflected in “Question 2”, which did not arise because of the negative answer to Question 1.
Of these three arguments, the first was one that could and should have been raised by the Applicant in submissions filed during the hearing. It was not.
**********
ABC Insurance Pty Ltd
The Law Society of New South Wales [2025] NSWCA 182
(2010) 241 CLR 570
Application dismissed with costs. The Court declined to vary the order requiring ABC Insurance to pay the Law Society’s costs of the proceedings.
The second argument was not entirely correct, as the Law Society adopted the Attorney General’s submissions in the alternative, and contended for a negative answer to the first question which was the outcome and “event” which costs followed, to adapt the language of UCPR r 42.1. The litigation, in the form in which it proceeded in the Court of Appeal, was in fact adversarial, and the Applicant was seeking by its participation in the proceedings to advance its commercial interests: see [4] above.
As to the third argument, the Applicant was fully engaged in argument as to Question 1. It filed 20 pages of written submissions on this question to which the Law Society replied, contending for a negative answer to Question 1 and otherwise adopting the Attorney General’s submissions. Mr Lenehan SC who appeared on behalf of the Applicant also made extensive oral submissions in relation to Question 1 which did not prevail. It should also be noted that the Applicant filed separate detailed written submissions on Question 2 to which the Law Society replied. Those submissions only became relevant if the Applicant succeeded on Question 1, which it did not, but this did not mean that the costs incurred in relation to the work undertaken for the purposes of Question 2 should be excised from any costs order.
In these circumstances, we see no reason to depart from or vary the costs order that was identified in the Judgment and which has been made.