ABC Insurance, the company that tried and failed to push professional indemnity insurance past the Law Society of NSW, attempted to convince a court to toss or vary a costs order.
In a milestone judgment published last April, the NSW Supreme Court dashed any hopes of ABC Insurance, on behalf of Liberty Mutual Insurance Company, to offer and issue professional indemnity insurance (PII) to solicitors for the 2024–25 year.
At the time, the court found in favour of the Attorney-General, and the Law Society in the alternative, that approval had already been granted for three PIIs to be offered and issued by LawCover, a wholly owned subsidiary that holds a monopoly in the state.
Further to this, the Attorney-General and the Law Society argued that solicitors could not be granted a practising certificate without first holding the Attorney-General-approved insurance coverage.
Chief Justice Andrew Bell, along with Justices Anthony Meagher and Ian Harrison, said ABC Insurance could not satisfy the condition under the Legal Profession Uniform Law because there was “another approved under or selected in accordance with that legislation”.
The Attorney-General did not seek costs, and orders were instead made that ABC Insurance should pay the Law Society’s costs.
In a recent application before Chief Justice Bell and Justice Harrison, Chief Judge, ABC Insurance sought a variation of the costs orders so that it either did not have to foot the Law Society’s bill, or it would pay costs from the week after the original decision.
ABC Insurance said the Law Society brought the proceedings as part of its regulatory obligations, and action against the Attorney-General was for a “non-adversarial objective”, which was comparable to “that of a neutral applicant seeking judicial directions, akin to receivers or administrators acting in the interests of proper administration”.
While it was unsuccessful, ABC Insurance also argued the Law Society had not been successful, as the arguments ultimately accepted by the court were those advanced on behalf of the Attorney-General.
Chief Justice Bell and Justice Harrison said the first argument should have been raised in the hearing submissions, but was not.
The second was “not entirely correct”, as the Law Society adopted the Attorney-General’s submissions in the alternative.
“In those circumstances, we see no reason to depart from or vary the costs order that was identified in the judgment and which has been made,” Chief Justice Bell and Justice Harrison said.
The costs case: ABC Insurance Pty Ltd v The Law Society of New South Wales [2025] NSWCA 182.
The substantive case: 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.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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