Andrew Berger KC

Barrister

LLB (Hons), BA, PLT

BIOGRAPHY

After many years of advising and appearing for clients in some of their most sensitive legal matters, Andrew has developed a reputation as a ‘counsel of choice’ for particularly complex, risky, sensitive or otherwise important matters.

Andrew has very broad legal experience and has achieved deep expertise across a significant number of areas of law, including appeals, statutory interpretation, public law, family law, commercial law, equity and trusts, inquests and inquiries, tort law, wills and estates, revenue and professional discipline. He also has a recognised ability to perform strongly in any matter he is briefed in.

He has appeared in well over 100 precedent setting cases in many different jurisdictions (including multiple appearances in the High Court, Full Federal Court, Full Family Court, and courts of appeal in various States and Territories).

In recent years, Andrew has appeared throughout Australia in a number of complex, high profile and important matters against leading senior counsel.

Andrew brings to each matter a highly developed strategic nous, an ability to pinpoint how the case is going to be won or lost, efficiency, including as to how best to deploy legal resources and efforts, and clear and concise communication skills, both in and out of court. He is also a great ‘team player’ and prides himself on being easy and pleasant to work with.

Andrew has given numerous presentations to the profession on a range of different legal issues. For several years, he served as an elected member of the ACT Bar Council and as a mentor in the Women in Law Enforcement Strategy (WILES) Mentoring Program.

Andrew is also an accredited mediator, who works hard to utilise his legal and communication skills, empathy and common sense to find common ground and practical outcomes that lead to lasting resolutions of difficult disputes.

‘I wanted to say thank you to both of you [Andrew and his junior counsel Alex Langshaw, Selborne Chambers] for your hard work and most importantly skill over especially the last few weeks but also the last year or more. I said to [the client] today that this was the best legal work I had ever witnessed being done (in reference to the two of you) and that I had ever been involved in. Your advocacy in particular Andrew was formidable.'

Sarah Keenan, Director, Farrar Gesini Dunn, 30 June 2024 - following a 12-day hearing in the ACT Supreme Court.

SELECT RECENT MATTERS

  • Appearing, leading B Kaplan SC, in a Federal Court class action involving allegations of unconscionable conduct and breach of the implied covenant of quiet enjoyment.

  • Commissioner of Taxation v White, judgment reserved, leading E Bishop SC and M Hosking, opposed by D McGovern SC, R Johnson and K Josifoski: Federal Court proceedings involving allegations the respondent promoted a tax exploitation scheme.

  • Leslie v Champion (ACT Supreme Court – McWilliam J, 15-30 July 2024, judgment reserved), leading A Langshaw, opposed by S Chapple SC: a case concerning testamentary capacity and knowledge and approval for several wills relating to a large estate.

  • Molonglo Group (Australia) Pty Ltd v Commissioner for ACT Revenue, leading N Oram and J Cunliffe, opposed by P Walker SC and J Bird, in an appeal to the ACT Supreme Court in relation to the largest Lease Variation Charge in Territory history.

  • Redrouge Nominees Pty Ltd (t/as Think Garden) v Canberra Institute of Technology (No 2)  [2024] ACTSC 362 and [2025] ACTSC 27, leading J Cunliffe, opposed by JC Giles SC and BJS Smith: a case concerning the construction and interpretation of a contract involving services provided to the Canberra Institute of Technology and whether the exercise of a contractual right to terminate for breach excludes common law right to accept breaching conduct as repudiation and recover loss of bargain damages.

  • Attorney-General for the State of Tasmania v Gregory John Casimaty (High Court of Australia, 9 April 2024 – judgment reserved): leading P Bindon, appeared before the Full Bench of the High Court for the Australian Capital Territory (Intervening) in a matter involving the application of parliamentary privilege.

  • Commonwealth v De Pyle [2024] FCAFC 43 (Full Federal Court), leading F Rogers, opposed by P McCafferty KC and S Marsh (for the Respondent) and DR Sibtain SC and CM Roberts (for the ABC – Intervening): successfully appealed the failure to make suppression orders on the basis they were necessary to prevent prejudice to national security and to protect the safety of a person. 

  • Koutsouroupas v Minister for Health and Aged Care [2024] FCA 677 (Kennett J), leading HAX Rogers, opposed by J Horton KC and PD Hay: successfully resisted an application for declarations that amendments to the National Health (Pharmaceutical Benefits) (Conditions of Approval for Approved Pharmacists) Determination 2017 (Cth) (the Determination) were invalid. Judgment in the Respondent’s appeal to the Full Federal Court is currently reserved.

  • Adcock v Sealy (No 2) [2024] FedCFamC1F (McNab J) opposed by G Dickson KC and K Ryan : property proceedings involving a short term de facto relationship with an ultra-high wealth individual.

  • Haeusler v Australian Capital Territory [2023] FCA 1304, leading B Kaplan, opposed by J Agius SC and P Boncardo: successfully resisted an application for an interlocutory injunction based on alleged breaches of an enterprise agreement. 

  • Attorney-General (Cth) v Sa'adat Khan (No 3) [2024] VSC 58 (Moore J), leading A Yuile and E Adams, opposed by R Nathwani SC, L Thies and C Hart: successfully sought review of an Extended Supervision Order made under the Criminal Code Act 1995 (Cth).

  • Zirilli v The King [2023] VSCA 64 (Victorian Court of Appeal), leading J Forsaith and S Martin, opposed by D Renton SC, D Karamicov and Dr M Gumbleton: an application for leave to appeal against a conviction arising out of the ‘Lawyer X’ scandal, which involved issues relating to the Telecommunications (Interception and Access) Act 1979 (Cth) and the Criminal Procedure Act 2009 (Vic). 

  • Stokes v Toyne [2023] HCATrans 147 and [2023] NSWCA 59 (High Court and NSW Court of Appeal), leading N Oram, opposed by D Pritchard SC, M Castle and AJ Macauley: a successful appeal from an adverse decision of the District Court in which Andrew obtained a permanent stay of proceedings against his client on the basis of denial of procedural fairness, Anshun estoppel and abuse of process. The plaintiff’s application for special leave to appeal was refused.

  • Hamor v Determining Authority [2023] FCA 267 (Goodman J), leading D Forrester, opposed by M Robinson SC, J Lucy and C Brain: successfully defended a decision made by the Professional Services Review Committee to disqualify a medical doctor for one year and require him to pay $1,959,718.75 because of inappropriate practice.

  • Appeared in and advised on a range of interim and family law proceedings including proceedings:

    • involving complex interim and final property and parenting issues

    • to injunct actions causing the devaluation of marital property

    • involving the interaction between orders made in a foreign jurisdiction and proceedings in the Family Court

    • concerning parental responsibility for a teenage child with gender dysphoria

    • concerning whether a party’s interests in a significant family trust constitute property for the purposes of s 79 of Family Law Act

    • seeking to set aside binding financial agreements

    • seeking to enforce previous court orders

    • involving urgent applications for relocation

    • seeking to set aside a bloodline trust in relation to a large farming enterprise, where complex issues relating to estoppel, trust law, equitable damages and s 90AE of the Family Law Act arose

  • Appeared for and advised a range of clients (both governments and individuals) in numerous Royal Commissions, inquests and inquiries, including:

    • Appeared for the Commonwealth of Australia in the IGADF Inquiry led by former Justice the Honourable Margaret McMurdo AC into the catastrophic crash of Australian Army MRH-90 Taipan helicopter while conducting night-time training during Exercise Talisman Sabre

    • Appeared for a senior ACT public servant in the ACT Integrity Commission’s public hearing concerning whether public officials within the ACT Education Directorate failed to exercise their official functions honestly and/or impartially when making recommendations and decisions regarding the Campbell Primary School Modernisation Project between 2019 and 2020

    • Appeared for the Chief of Army, Chief of Navy and Secretary of the Department of Veterans Affairs in the Royal Commission into Defence and Veteran suicide

    • Advised a senior public servant in relation to his response to a notice of adverse comment in the Royal Commission into the Robodebt Scheme and subsequent Centralised Code of Conduct Taskforce investigation

    • Appeared for two prominent Australians in proceedings before the Commonwealth Law Enforcement Integrity Commissioner

    • Appeared for the Commonwealth of Australia in the coronial inquest into the death of Ishak Ahmed

  • Comcare v Friend [2024] FCAFC 4; (2024) 301 FCR 617, leading P Bindon, opposed by K Nomchong SC and C Magee; Leach v Comcare [2021] FCAFC 134, 285 FCR 326, leading K Slack, opposed by ML Robertson QC and FJ Chen: Full Federal Court appeals relating to the interpretation and application of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

  • Marshal of the Federal Circuit and Family Court of Australia v Trach [2022] FedCFamC1F 22; Che v Don (No 2) [2021] FedCFamC1F 304 (Gill J), opposed by M Davis: acting for the Marshal of the Federal Circuit and Family Court of Australia to prosecute a case of contempt.

  • Roberts-Smith v Fairfax Media Publications Pty Ltd (No 31) [2022] FCA 271 / Roberts-Smith v Fairfax Media Publications Pty Ltd (No 15) [2021] FCA 582 (Abraham J), leading J Edwards and C Ernst, opposed by A Moses SC and P  Sharp: hearings concerning the Inspector General Australian Defence Force Regulations 2016 (Cth), the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) and public interest immunity in the context of Ben Roberts-Smith’s defamation proceedings against Fairfax Media Publications Pty Ltd.

  • Benbrika v Minister for Home Affairs [2021] VSCA 303 (Victorian Court of Appeal), leading M Hosking and A Lord, opposed by D Star QC, C Tran and N Wootton: successfully defended a decision to impose a continuing detention order on the appellant.

  • Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719 (White J), opposed by G Watson SC and D Tang:  the ‘National Cabinet papers case’.

  • Minister for Home Affairs v Benbrika (2021) 95 ALJR 166 (Kiefel CJ, Bell, Gageler, Keane, Gordon, Edelman and Steward JJ): appeared for the Minister for Home Affairs in High Court proceedings concerning the constitutional validity of Division 105A of the Commonwealth Criminal Code.

AREAS OF PRACTICE

  • Appeals

  • Accredited Mediator

  • Administrative & Regulatory

  • Commercial/Contract Disputes

  • Common Law

  • Constitutional

  • Discrimination

  • Employment & Industrial

  • Equity

  • Family

  • Inquiries, Inquests & Coronial Law

  • Professional Discipline

  • Tort

  • Workers Compensation/Comcare

  • Workplace Health & Safety

Resume