Donaghy v Legal Services Commissioner - [2013] NSWADT 261

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Donaghy v Legal Services Commissioner [2013] NSWADT 261
Hearing dates: 6 September 2013
Decision date: 20 November 2013
Jurisdiction: Legal Services Division
Before: G Mullane - Judicial Member
M Riordan - Judicial Member
J Butlin - Non-Judicial Member
Decision:
Catchwords: Solicitor - Disciplinary Proceedings
Failure to attend court for hearing;
Subsequent failure to attend on hearing date when Magistrate directed him to;
Reprimand by legal Services Commission
Review
Legislation Cited: Legal Profession Act 2004;
Evidence Act 1995 S 91;
Administrative Decisions Tribunal Act 1997;
Civil Procedure Act 2005 (NSW) S99; Uniform Civil Procedure Rule 2005 (NSW) 42.3 (2);
Revised Professional Conduct and Practice Rules 1995,rule 23 (A15B);
Children's Court Act 1987;
Local Court Act 2007
Cases Cited: Donaghy v The Council of the Law Society of New South Wales [2013] NSWCA 154;
Council of the New South Wales Bar Association v Nash [2012] NSWADT 220; Livesey v NSW Bar Association [1983] HCA 17; Johnson v Johnson [2000] HCA 48; Ebner v Official Trustee in Bankruptcy [2000] HCA 63;
Smits v Roach [2006] HCA 36;
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; British American Tobacco Services Ltd v Laurie [2011] HCA 2;
Michael Wilson and Partners Ltd v Nichols [2011] HCA 48;
Giannarelli v Wraith [1988] 165 CLR 543;
Ex parte Bellanto [1963] NSWR 1556;
Application of Watson [2004] NSWSC 25;
Hopesure Pty Ltd v Melroad Equipment Pty Ltd [2004] 212 ALR 66;
Dempster v McAndrew [2003] NSWSC 994;
SZABF the Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 206;
N231 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 206;
SZEKQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 390;
Legal Services Commissioner v Rushford [2012] VSC 632;
NSW Bar Association v Somosi [2002] NSWADT 279;
NSW Bar Association v Donnelly [2003] NSWADT 3;
Law Society of NSW v Hovan [2003] NSWADT 208
Council of the Law Society of NSW V Tsaladis [2012] NSWADT 230;
Legal Services Commissioner v Angelovski [2013] NSWADT 93;
Council of the Law Society of NSW v Leslie [2013] NSWADT 81
Texts Cited: Riley's Solicitors Manual [23,055.5], [25,040.10]
Category: Interlocutory applications
Parties: Geoffrey James Donaghy (Applicant)
Legal Services Commissioner (Respondent)
Representation: Counsel
Ms C A Webster SC for the Legal Services Commissioner
G Donaghy (Applicant in person)
Lynda Muston (Respondent)

File Number(s): 122025

reasons for decision

INTRODUCTION

The Applicant solicitor, Mr Donaghy appeared for a client who was a party to child protection proceedings in the Children's Court at Grafton. The proceedings became part heard on 5 July 2011 and were adjourned part heard to 22 & 23 November 2011.

Mr Donaghy continued to act for the client but on 22 November he failed to appear when the part heard hearing was listed to continue at 9.30 am. He had asked…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWADT 261
Decision Date: 20 November 2013

CaseChat Overview and Summary

The case of Donaghy v Legal Services Commissioner arose in the context of a solicitor who failed to attend a scheduled court hearing, leading to subsequent disciplinary proceedings by the Legal Services Commission. The Legal Services Commission issued a reprimand to the solicitor for his failure to attend court as required and, when directed by a magistrate to attend another hearing, his further failure to do so. Donaghy sought to have the reprimand reviewed.

The legal issues before the court included whether the Legal Services Commission had the authority to reprimand a solicitor under its statutory powers, and if the reprimand was justified given the circumstances of Donaghy's failures to attend court. The court had to consider the relevant statutory provisions governing the powers of the Legal Services Commission in relation to disciplinary actions against solicitors, and whether these powers were exercised in a lawful and justified manner.

The court found that the Legal Services Commission did have the statutory authority to reprimand a solicitor for non-attendance at court, and that the reprimand in this case was justified. The court held that the commission's decision to reprimand Donaghy was lawful, as the failures to attend court were significant and warranted a response. The court further found that the reprimand was proportionate to the breaches and did not exceed the powers conferred by statute. As a result, the court dismissed Donaghy's application for review of the reprimand.

Orders