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 a solicitor appearing for another party to mention the matter on his behalf and request that the hearing be "stood down" to the next day.

The Children's Court Magistrate made an order that Mr Donaghy, who was in Lismore, appear in the Children's Court at Grafton and adjourned the proceedings to later that morning. Mr Donaghy did not appear. He had an agent appear and request the proceedings be adjourned till the next day.

Subsequently the Respondent considered Mr Donaghy's conduct under Section 540 of the Legal Profession Act 2004 ("the Act") and decided that the matter was appropriate for him to deal with it summarily. The Respondent by a letter of 4 September 2012 notified Mr Donaghy of his decision and his reasons. The decision was to reprimand Mr Donaghy for his conduct.

On 4 October 2012 Mr Donaghy filed his application for the Tribunal to review the decision under section 65 of the Administrative Decisions Tribunal Act 1997. The hearing occurred on 6 September 2013. These are the tribunal's first stage reasons and findings regarding the matter.

THE EVIDENCE

The evidence before the tribunal on the hearing of this matter comprised:-

(1) Children's Court Magistrate's Judgment of 7 May 2012;

(2) Extract from Practice Note 5 of the Children's Court of NSW;

(3) 12 June 2012 Record of Decision - Initiation of Complaint ;

(4) 12 June 2012 - letter from the office of the Legal Services Commissioner to the applicant;

(5) 4 July 2012 letter from the applicant to the office of the legal services commissioner;

(6) 10 July 2012 letter from the office of the legal services commissioner to the applicant;

(7) 13 July 2012 letter from the applicant to the office of the legal services commissioner ;

(8) 18 July 2012 letter from the office of the legal services commissioner to the applicant

(9) 8 August 2012 letter from the applicant to the office of the legal services commissioner;

(10) 15 August 2012 letter from the office of the legal services commissioner to the applicant;

(11) 22 August 2012 letter from the applicant to the office of the legal services commissioner;

(12) Letter of 4 September 2012 from Legal Services Commissioner to applicant advising of decision;

(13) Application of the applicant for review of the decision of the legal services commissioner;

(14) Notice of reply to the application;

(15) Letter of 4 September 2012 from the applicant to the registrar of the tribunal and applicant's submissions attached; and

(16) Admissions made by the applicant orally at the hearing and also in submissions.

The Judgment of the Children's Court Magistrate of 7 May 2012 was in respect of a hearing on 27 February 2012. That hearing was appointed on 23 November 2011 to address the issue of whether the Magistrate should make an order for Mr Donaghy to pay any costs of 22 November 2011 of any other party to the proceedings and to allow Mr Donaghy time to prepare any affidavit material or submissions he wanted to rely upon.

Mr Donaghy attended the hearing on 27 February 2012. He was not represented. He did not rely upon any affidavit material or written submissions. He made oral submissions only. In his letter of 4 July 2012 to the Commissioner Mr Donaghy said he had read the transcript of the 22 November 2012 and noted that Mr Wheelahan had not informed the Court that he was mentioning the matter on behalf of Mr Donaghy. One would have expected that the Children's Court would, as standard practice, have sent Mr Donaghy a copy of the Magistrate's Judgment of 7 May when it issued. In his letter of 13 July 2012 to the Commissioner Mr Donaghy argued that the Judgment should not be relied upon by the Commissioner. He also said he had not been provided a copy of the Judgment. The Commissioner on 18 July 2012 sent Mr Donaghy a copy of the Judgment of 7 May and invited any further written submissions from him by 9 August 2012.

On receipt of the Judgment and consideration of the contents of that Judgment, Mr Donaghy asked the Commissioner by a letter dated 8 August for an extension of time for further written submissions till 23 August "in which to lodge my further submission" as "I believe that I need to consider the transcripts of the Children's Court proceedings on 5 July 2011 and 22 and 23 November 2011 to be in a position to properly respond to the Commissioner's complaint pursuant to section 504 of the Legal Profession Act."

The only further submissions of Mr Donaghy to the Commissioner are contained in his letter to the Commissioner of 22 August 2012. Those submissions were: "I have considered the judgment of Magistrate Heilpern and will note (sic) be making any submissions on that decision." Mr Donaghy did not dispute in his dealings with the Commissioner any of the findings in the judgment. After he received the copy of the judgment sent to him on 18 July 2012, he did not offer the Commissioner any further evidence or submission before the Commissioner's decision of 4 September 2012.

Before the Tribunal Mr Donaghy objected to the Judgment being part of the evidence because, he submitted, it was not relevant. That objection was rejected. The relevance of the contents of that Judgment is clearly shown by consideration of the complaints. At the hearing Mr Donaghy told the Tribunal the only evidence or submission he relied upon by way of an explanation for his conduct, was his letter to the Commissioner of 4 July.

Section 91 of the Evidence Act 1995 provides that evidence of a decision or finding of fact ...in proceedings "is not admissible to prove a fact that was in issue in that proceeding." But subsection 73(2) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") provides:

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

There is an exception to that provision in Subsection 558(1) of the Legal Profession Act 2004 ("the Act") in hearings in the Tribunal "into a question of professional misconduct", but this is not such a hearing and subsection 73(2) of the Administrative Decisions Tribunal Ac 1997t therefore applies, as is confirmed by subsection 558(2) of the Legal Profession Act 2004.

However, these proceedings in the Tribunal are a review of a summary decision under section 540 of the Act 2004, and the section requires the Tribunal to be satisfied that there is a reasonable likelihood that the practitioner would not be found guilty of professional misconduct.

Mr Donaghy relied upon the decision of this Tribunal in Council of the New South Wales Bar Association v Nash [2012] NSWADT 220 in support of his argument that the Judgment should not be admitted into evidence. Those proceedings in the Nash decision were the hearing of a disciplinary application by the Bar Council to the Tribunal alleging that the Respondent was guilty of professional misconduct in that she allegedly misled the District Court by giving various false evidence, engaged in various misleading conduct, and was a party to false attestation of documents. The Tribunal found that 2 counts of giving false evidence to the District Court were proved and each constituted professional misconduct. It also found that the barrister had misled the District Court by knowingly giving false evidence that a solicitor had witnessed her signature on a document and that conduct also constituted professional misconduct. Accordingly by virtue of subsection 558(1) of the Act the rules of evidence (including section 91 of the Evidence Act 1995) applied. That is not the case in this hearing.

Mr Donaghy also submitted that to admit the Judgment into evidence was "contrary to the rules of natural justice". Mr Donaghy became generally aware of the complaints raised against him when he received the Commissioner's letter of 12 June 2013. He received the Judgment with the Commissioner's letter of 18 July 2012. He was given time to also read the transcripts of 5 July 2011 and 22 and 23 November 2011. If he had any doubt about the Magistrate's version of what transpired in Court on 27 February, he also had ample time to obtain and read the transcript of that. The Commissioner's decision was not made until 4 September 2012, more than 5 weeks after Mr Donaghy received the judgment. At the hearing Mr Donaghy told the Tribunal that he did not in the proceedings dispute findings by the Magistrate as he did not think it appropriate for him to do so.

The Tribunal is satisfied that allowing the judgment into evidence is not unfair to Mr Donaghy and is not contrary to rules of natural justice.

RELEVANT FACTS

The applicant solicitor, Mr Donaghy, whose office is in Lismore, appeared for a mother of 5 sibling children in care proceedings listed for hearing on 5 July 2011 in the Children's Court at Grafton. The children had been removed from their mother's care. The hearing was not completed that day and was adjourned specially fixed for a further 2 days at Grafton on Tuesday 22 & Wednesday 23 November 2011. It was fixed to commence at 9.30am on 22 November.

On Monday 21 November 2011 Mr Donaghy was served by the Department of Family and Community Services ("FACS") with a revised care plan for the 3 youngest children. He said the next morning, in a letter he sent by Fax to Mr Wheelahan, the solicitor for FACS, and in a letter to his Grafton agent, Mr O'Connor at MJO Legal, that he received the revised care plan "at 4.09pm" on the Monday afternoon and the FACS proposal was "to place the 3 youngest children their maternal grandmother and for the 2 oldest children to be restored to our client over a 12 month period".

There is some inconsistency in the versions of Mr Donaghy as to the time the revised care plan was served on him.. He told the Children's Court Magistrate on the Wednesday that "at approximately 2pm on Monday" he had discussions with Mr Wheelahan, who told him that the Magistrate had asked about the matter and Mr Wheelahan had told the Magistrate that "the parties were talking and there was progress". He told the Magistrate "I raised the prospect of given the Department's dramatic change in position on Monday afternoon, that this matter could settle. I think Mr Wheelahan had advised me that he would come back across to the Court on Monday afternoon and inform(sic) of those discussions." That suggests he had already received the revised care plan when he had the discussion with Mr Wheelahan at about 2.00 pm on Monday, not 4.09 pm..

Mr Donaghy told the Magistrate on 23 November:

",,,on Monday afternoon I was in the process of preparing an affidavit by my client to serve on the Court because I anticipated having to come here on Tuesday and go to war and have a repeat of 5 July. That's where I was a 2pm on Monday your Honour - I was anticipating another unpleasant, bruising encounter"

The Magistrate asked Mr Donaghy on 23 November 2011 "why were you not here on the date it was set for hearing?" Mr Donaghy replied, "Because Mr Wheelahan and I were attempting to resolve the matter. Mr Wheelahan graciously ......agreed to mention the matter on my behalf.." He subsequently said, ".....what I was attempting to do, I can't speak for what was inside Mr Wheelahan's mind, was simply to stand the matter down yesterday while we tried to resolve the issues."

After Mr Donaghy received the revised care plan the applicant decided not to attend the Children's Court the following day, but to defer his attendance till Wednesday 23 November. It appears that Mr Donaghy advised his client not to attend Court on the Tuesday. Mr Donaghy also decided to appear in the Federal Magistrates Court at Lismore on the morning of Tuesday 22 November for another client and withdrew instructions to a solicitor agent he had previously instructed to appear.

On the morning of 22 November 2011 the applicant spoke again with Mr Wheelahan and sent a facsimile letter to Mr Wheelahan. That letter included the following:-

"In the circumstances we confirm our advice that we will require time for our client to consider the amended care plans and it is most likely this matter will settle. Therefore we are of the view that the two days allocated for this matter will not be required.

We refer to our further telephone conversation of this morning and confirm you are agreeable to mentioning the matter on our behalf today to have it stood over until tomorrow Wednesday 23 November 2011 to enable time for the amended care plans with respect to the two oldest children to be served and for our client to consider the amended care plans."

Mr Donaghy did not appear in the Children's Court at 9.30am on the Tuesday when the hearing was to resume. Instead he attended the Federal Magistrates Court in Lismore and appeared for another client in proceedings in that Court .

When the Magistrate discovered on the morning of 22 November that neither Mr Donaghy nor his client was present in court when the matter was to commence, he made a direction that Mr Donaghy attend the court, stood the matter down till 11.30 am and arranged for the court officer to telephone Mr Donaghy's staff in his office in Lismore, informing them of the situation and of the direction and requesting that they inform Mr Donaghy of those matters.

Those messages were conveyed to Mr Donaghy , but he did not attend the Court on 22 November. About 90 minutes after the Magistrate's direction, Mr O'Connor appeared in the Children's Court as Mr Donaghy's agent and informed the court that his instructions from Mr Donaghy were to seek to have the matter adjourned to the next day (23 November 2011) so that Mr Donaghy could take instructions from his client on the care plans served on him on 21 November. The agent informed the Court that he had no instructions to inform the court of any reason why Mr Donaghy had not attended Court .

Mr Donaghy was aware of the Magistrate's direction but did not comply with it. The letter Mr Donaghy sent to his Grafton agent, Mr O'Connor, is in evidence. The letter recited the receipt of the amended care plans at 4.09 pm the previous day. It also said that amended care plans for the 2 oldest children had still not been received but "we have today been advised that he department proposes the 2 oldest children remain in care until they attain the age of 18 years" and "This is contrary to what we believed the Department's position to be yesterday, which was that the 2 oldest children were to be restored to our client over a 12 month period."

The letter continued:

"Our client resides in Brisbane, and we seek time for her to read through the amended documents and for us to obtain proper instructions. We are seeking that the matter be adjourned until tomorrow 23 November 2011 in view of the late service of the amended documents (over some 50 pages so far, not including the amended care plans for the 2 oldest children which are yet to be received). We would submit it is in the interests of justice for the matter to be adjourned until tomorrow as a result of the Department's change in position and eleventh hour service of amended material, so that our client is afforded the opportunity of properly considering the matter." and

"We confirm our client resides in Brisbane, however she will be in attendance at the Court at 9.30 am tomorrow with Mr Donaghy."

Mr Donaghy stated in his letter of 4 July 2012 to the Legal Services Commissioner that he sent a letter of instructions to the agent, Mr O'Connor. He told the Commissioner:

"I informed him that I was involved in a hearing in the Federal Magistrates Court in Lismore and was unable to attend and that I had made arrangements for Mr Wheelahan to attend Grafton on my behalf as I believed that matter in Grafton was all but settled and I was still awaiting the receipt of the care plans for the youngest 3 children I made the decision to attend the Federal Magistrates Court in Lismore."

But that is not true. The letter did not disclose anything about Lismore proceedings. Nor did it say that Mr Donaghy was unable to attend the Children's Court or was otherwise occupied. Nor did it say anything about the Children's Court matter being "all but settled". Also he was not waiting for care plans for the 3 youngest children.

THE DECISION OF THE LEGAL SERVICES COMMISSIONER

There was correspondence by the Legal Services Commissioner from 12 June 2012 with Mr Donaghy and submissions made by Mr Donaghy to the Legal Services Commissioner in relation to allegations including that he failed to attend the Children's Court of NSW on 22 November 2011 for the hearing and he also failed to comply with the direction of the Magistrate of the same date requiring him to attend the Court that day. Those allegations were clearly stated in the document of the Legal Services Commissioner of 12 June 2012, which identified 2 complaints:

Complaint 1: The solicitor failed to comply with clause 19 of Practice Note No. 5 of the Children's Court of NSW regarding applications to vacate a hearing date: and

Complaint 2:. The solicitor failed to comply with a direction of the Children's Court Magistrate to attend the Court at Grafton on 22 November 2011.

The Commissioner considered a judgment of the Magistrate of 7 May 2012 in respect of a hearing which Mr Donaghy attended on 27 February 2012 and at which the Magistrate invited and heard submissions from Mr Donaghy as to whether the Magistrate should make an order for Mr Donaghy to pay costs of 22 November 2011 of any other party to the Children's Court proceedings. The Magistrate found in his judgment that he did not have power to make such a costs order.

Mr Donaghy was provided with a copy of the Judgment by the Legal Services Commissioner but did not offer to the Legal Services Commissioner any evidence disputing findings of the Magistrate in his Judgment. (Nor did Mr Donaghy offer any such evidence in the proceedings before the Tribunal.)

The Commissioner also considered Practice Note 5, sections 537, 539 and 540 of the Legal Profession Act 2004 and correspondence between his office and Mr Donaghy comprising 3 letters from his office to Mr Donaghy and 4 letters from Mr Donaghy to his office including Mr Donaghy's submissions.

The Commissioner made a final decision on 4 September 2012. He found under Section 540 of the Act that:

Mr Donaghy was "generally competent and diligent";
there was "a reasonable likelihood" that Mr Donaghy would be found by this Tribunal to have engaged in unsatisfactory professional conduct (but not professional misconduct); and
the taking of action under Section 540 was justified having regard to all the circumstances of the case including the seriousness of the conduct concerned and the fact that other substantiated complaints had been made against Mr Donaghy.

The other substantiated complaints referred to by the Commissioner were described by him in his decision as the applicant had been "recently reprimanded by the Tribunal for an unreasonable failure to pay counsel's fees for two years together with a failure to communicate with counsel for 9 months and a lack of understanding of the costs assessment process."

In this hearing Mr Donaghy relied upon the decision of the NSW Court of Appeal of Donaghy v The Council of the Law Society of New South Wales [2013] NSWCA 154 delivered on 6 June 2013. That was a decision on the hearing of the applicant's appeal against the Tribunal's decision of 17 August 2012 in Donaghy v The Council of the Law Society of NSW (no 2) [2012] NSWADT 170 in which the Tribunal constituted by a different panel made the findings referred to by the Legal Services Commissioner in his decision.

The Court of Appeal hearing and the decision, of course, came after the Commissioner made his decision of 4 September 2012. However, because of errors of the Tribunal, the Court of Appeal set aside the orders of the Tribunal of 17 August 2012 and ordered a further hearing. So far as we are aware, that rehearing has not occurred. Accordingly in this hearing we have not relied upon any findings of the Tribunal in those earlier proceedings.

The Commissioner in his decision of 4 September 2012 determined to reprimand Mr Donaghy for his conduct. The respondent was notified of the decision by letter dated 4 September 2012 which set out the following reasons:

"I am satisfied that based on the facts presented to me there is a reasonable likelihood that the Tribunal would find you have engaged in unsatisfactory professional conduct. I have formed this view based on the following information:

As a solicitor, your primary duty is to the court. You were required to attend court on 22 November 2012. I note your submission that you wrote to Mr Wheelahan on 22 November 2012 to ask him to mention the matter on your behalf in light of the late service of the Care Plans. You state that, on reviewing the transcript of proceedings on 22 November 2011, it would appear that Mr Wheelahan did not advise his Honour that he was mentioning the matter on your behalf.

In the judgment his Honour quotes from the transcript of proceedings on 23 November 2011. At page 7 his Honour states that Mr Wheelahan mentioned the matter but despite this he wanted both you and your client to attend court. In fact, his Honour stood the matter in the list on 22 November 2011 to allow you time to attend.

I note you submit that it was not your intention to vacate the hearing on 22 November 2011. His Honour clearly states that when a matter has been set down for hearing you must either attend or apply to vacate the hearing. You did neither. His Honour also states that late service of material is not a reason to not attend court.

With regard to the allegation of failing to comply with a direction given by a Magistrate, I note that you concede that in not attending when directed to do so you were discourteous to Magistrate Heilpern.

Having regard to your previous complaint history, I am satisfied that you are generally competent and diligent. I note, however, that you were recently reprimanded by the Tribunal for an unreasonable failure to pay counsel's fees for two years, together with a failure to communicate with counsel for 9 months and a lack of understanding of the costs assessment process.

I am satisfied that taking action pursuant to s. 540 of the Act is appropriate given that the conduct the subject of the complaint is sufficiently serious. In reaching this conclusion I have had regard to Magistrate Heilpern's comments in relation to the resources that were wasted by the hearing not going ahead on 22 November 2012. I note that Magistrate Heilpern explored every avenue to determine whether or not he could make a personal costs order against you. Although Magistrate Heilpern ultimately concluded that there was no provision available to him to make the costs order he referred a copy of his judgment to the President of the Children's Court so that he may consider whether it may be appropriate to make representations that the legislation should be amended to permit an order for costs against a legal practitioner."

At the hearing Mr Donaghy at one stage put to the Tribunal that the complaintrs against him were of not complying with the Practice Note and not complying with the Magistrate's direction to attend. Indeed when Mr Donaghy made that submission the Presiding Member agreed with him.

But that is not correct. They were the complaints in the preliminary decision of the Commissioner.

The final decision of the Commissioner did not rely upon non-compliance with the Practice Note. It is noted that in his decision the Commissioner relied upon the failure of Mr Donaghy to attend the Children's Court for the hearing on 22 November 2011 and his failure to comply with the direction of the Magistrate that he attend. The final decision included a finding that in the absence of any application to vacate the listing of the hearing at 9.30 am on 22 November 2011, the hearing was listed to start then and Mr Donaghy had an obligation to attend, but he failed to do so.

THE REVIEW APPLICATION

On 4 October 2012 the applicant filed his application for review of the decision of the Legal Services Commissioner by the Tribunal. Under subsection 540(5) the decision of the Legal services Commissioner to reprimand the applicant is a decision that is reviewable by the Tribunal on the application of the applicant.

RELEVANT LEGISLATIVE PROVISIONS

The decision of the Commissioner was made under section 540 of the Legal Profession Act 2004 which provides:-

540 Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions

(1) This section applies if:

(a) Either:

(i) The Commissioner or a Council completes an investigation of a complaint against an Australian legal practitioner, or

(ii) The report of an independent investigator is given to the Commissioner, and

(b) The Commissioner or Council (as the case requires):

(i) Is satisfied that there is a reasonable likelihood that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct (but not professional misconduct), and

(ii) Is satisfied that the practitioner is generally competent and diligent, and

(iii) Is satisfied that the taking of action under this section is justified having regard to all the circumstances of the case (including the seriousness of the conduct concerned) and to whether any other substantiated complaints have been made against the practitioner.

(2) The Commissioner or Council may do any or all of the following:

(a) Caution the practitioner,

(b) Reprimand the practitioner,

(c) Make a compensation order under Part 4.9 if the complainant requested a compensation order in respect of the complaint,

(d) Determine that a specified condition be imposed on the practitioner's practising certificate.

(3) Failure to attend as required by the Commissioner or Council to receive a caution or reprimand is capable of being professional misconduct.

(4) If action is taken under subsection (2), no further action is to be taken under this Chapter with respect to the complaint.

(5) If the Commissioner or Council decides to reprimand or make a compensation order against an Australian legal practitioner under this section, or that a condition be imposed on an Australian legal practitioner's practising certificate under this section, the practitioner may apply to the Tribunal for a review of the decision.

Note: Reviews are carried out under Chapter 5 of the Administrative Decisions Tribunal Act 1997. Section 729A modified the operation of that Act. An appeal lies to the Supreme Court under section 729A against a decision of the Administrative Decisions Tribunal.

(6) If the Commissioner determines that a specified condition be imposed on a practising certificate, the appropriate Council is required to impose and maintain the condition. The condition may be amended, suspended, reinstated or revoked with the concurrence of the Commissioner.

In relation to unsatisfactory professional conduct and professional misconduct, sections 496, 497 and 498 of the Legal Profession Act 2004 provide:

496 Unsatisfactory professional conduct

For the purposes of this Act:

"unsatisfactory professional conduct" includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

497 Professional misconduct

(1) For the purposes of this Act:

"Professional misconduct" includes:

(a) Unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and

(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.

498 Conduct capable of being unsatisfactory professional conduct or professional misconduct

(1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct:

(a) Conduct consisting of a contravention of this Act, the regulations or the legal profession rules,

(b) Charging of excessive legal costs in connection with the practice of law,

(c) Conduct in respect of which there is a conviction for:

(I) a serious offence, or

(ii) A tax offence, or

(iii) An offence involving dishonesty,

(d) Conduct of an Australian legal practitioner as or in becoming an insolvent under administration,

(e) Conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth,

(f) Conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice),

(g) conduct of an Australian legal practitioner in failing to comply with an order of the Disciplinary Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law),

(h) Conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law.

(2) Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention.

Section 63 of the Administrative Decisions Tribunal Act 1997 provides:-

63. Determination of review by Tribunal

(7) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(1) Any relevant factual material

(2) Any applicable written or unwritten law.

(8) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(9) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(1)To affirm the reviewable decision, or

(2)To vary the reviewable decision, or

(3) To set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(4) To set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

MR DONAGHY'S ATTITUDE ON 23 NOVEMBER 2011 TO HIS FAILURE TO APPEAR

The findings in the Magistrate's judgment included the following: -

a. The matter was listed for a defended hearing with priority and with no other matters listed for those two days (22 & 23 November 2011).

b. Mr Donaghy did not attend the court. He went to the Federal Magistrates Court in Lismore and appeared on behalf of another client in different proceedings. When the Magistrate stood the proceedings down for 90 minutes and ordered Mr Donaghy to appear, but he did not do so, an agent solicitor appeared on behalf of Mr Donaghy.

c. The agent did not have instructions to explain any reason why Mr Donaghy had not attended.

d. On 23 November 2011 the proceedings were settled and finalised by consent orders by 11 am.

The Magistrate's Judgment also includes the following exchanges that occurred on 23 November 2011 after the proceedings were settled :

HIS HONOUR:

It had been set down for hearing for three months. You were not at court at 9:30 when court was due to start. A letter was handed up which said that because of the late service of material, I'm paraphrasing here, you required time for your client to consider the amended care plans, "it's most likely this matter will settle therefore we are of the view that the two days allocated to this matter will not be required". So then you had somebody mention the matter on your behalf to that effect. Last time I looked, the only person who had determined whether a matter proceeds on a part heard matter is the Court, it is not for you or indeed for any of the other parties to make that determination. I was ready to hear the matter, Ms Steiner was here, Mr Wheelahan was here, you were not here. I then stood the matter down till 11:30 so you could get here whereupon you appointed an agent who said you weren't coming. Now, late service of material is common in all non-criminal and indeed, in criminal jurisdictions that this court deals with, it is unfortunate but it is not uncommon, it is not in my view on the face of it, subject to hearing from you, a reason not to bother coming to court and to make an assumption that as the matter is now likely to settle, you weren't going to turn up and nor was your client. That's what I want you to address me on."

DONAGHY: Yes your Honour I appreciate you putting it in that way, I obviously haven't been looking at it from - I understand what you Honour's saying, if your Honour took offence at--

HIS HONOUR: It's not a question of taking offence. The issue is that when a matter is set down for hearing - well I think we should start from first principles. The practice note in the Children's Court is crystal clear, I will just gather it, the practice note which is headed, "Children's Court Practice Note Number 5 Case Management Care Proceedings," it of course replaces a whole series of practices but what it says at point 19 is this "If it appears to a party that a hearing date is in jeopardy as a result of non-compliance with orders or directions of the Court or because of intervening events, the party must immediately approach the Court for urgent relisting of the matter before a Children's Magistrate. Any application to vacate a hearing date must be in writing on the prescribed form 'Application to Vacate a Hearing Date.' The party bringing the application to vacate a hearing must give reasonable notice to all other parties that an application to vacate is being made. When a hearing date has been allocated, it will not be vacated unless the parties seeking to vacate the hearing provides cogent and compelling reasons."

No such application has at any time been made to me Mr Donaghy

DONAGHY: Your Honour as I say, I had discussions with Mr Wheelahan at approximately 2pm on Monday, Mr Wheelahan advised me that he had - you had raised the matter with him earlier that day in court, my recollection is that Mr Wheelahan had indicated to your Honour that the parties were talking and that there was progress. My recollection again from Mr Wheelahan is that he told me that he would - when I said to him I raised the prospect of given the department's dramatic change in position on Monday afternoon that this matter could settle. I think Mr Wheelahan had advised me that he would come back across to the Court on Monday afternoon and inform of those discussions. Now Mr Wheelahan then in the course of our attempts to settle what has been a very difficult and may I say, tragic matter for the children given the evidence of their being assaulted in the care that was revealed--

HIS HONOUR: Let's just stick to the issue.

DONAGHY: Well your Honour as I say, settlement is always preferable to a Court determination.

HIS HONOUR: But there is no doubt about that at all, there is no difference to this than a civil matter where parties come before the Court and say, we were served with these documents late, we seek an adjournment and vacate the hearing date.

DONAGHY: Well I'm not trying to be difficult with your Honour but I take the view that these are children's proceedings and they're not like other civil proceedings.

HIS HONOUR: Yes but the same rules apply-

DONAGHY: Well Your Honour-

HIS HONOUR: --when a matter is set down for hearing, you must attend or vacate the hearing, it's that simple.

DONAGHY: And as I say your Honour, on Monday afternoon I was in the process of preparing an affidavit by my client to serve on the Court because I anticipated having to come here on Tuesday and go to war and have a repeat of 5 July, that's where I was at 2pm on Monday your Honour, I was anticipating another unpleasant, bruising encounter-

HIS HONOUR: You're repeating yourself, why were you not here on the date it was set for hearing?

DONAGHY: Because Mr Wheelahan and I were attempting to resolve the matter, Mr Wheelahan graciously and I'm not trying to - graciously agreed to mention the matter on my behalf, my client resides in Brisbane, I had been served with 50 to 60 pages of care plans, there was a proposal now that these children would be separated, five children who had been together in care for 13 months--

HIS HONOUR: Yes I appreciate that you were--

DONAGHY: --my client--

HIS HONOUR: Just a moment, I appreciate you were served late with material. Mr Wheelahan did mention the matter insofar as noting that there were discussions that were taking place. You fail I think to comprehend what I am trying to point out which is that it is only the Court that can vacate a hearing date.

DONAGHY: And I appreciate that Your Honour but the matter - what we were attempting, what I was attempting to do, I can't speak for what was inside Mr Wheelahan's mind, was to simply stand the matter down yesterday while we tried to resolve the issues.

HIS HONOUR: It was stood down till 11.30--

DONAGHY: And Your Honour--

HIS HONOUR: --it could - just a moment, it could not be resolved and yet you still did not appear and instructed an agent to seek that the matter be adjourned till tomorrow--

DONAGHY: Due to the late--

HIS HONOUR: --while you attended to matters in the Federal Magistrate's Court.

DONAGHY: Well again - no, that is not correct at all your Honour, that is not correct at all. I had an agent organised on Monday to deal with my Federal Magistrates Court matters if that's what your Honour's concerned about, I had an agent organised, given the turn of events I was able to attend at those matters but that was not the reason I did not appear yesterday.

HIS HONOUR: Well why didn't you appear yesterday when requested to by the Court at 11.30 with an indication that the matter was going to proceed?

DONAGHY: Well I had arranged an agent, I received notification at ten past ten, I simply physically could not have been here at 11.30 your Honour, I received notification my client hadn't travelled down from Brisbane. Again I go back to the late service, I think it's unreasonable of the Director General to place my client, an indigenous woman in a situation where she has be expected at court to agree to the separation of her children some 18 months of these proceedings being before the Court, I simply put to Mr Wheelahan that for us to enable to obtain a reasonable settlement in this matter that I required time to send the care plans to my client, have her consider them properly, have discussions with her and can I say when we came here this morning your Honour, I told Mr Wheelahan we had an agreement on the three youngest children, my client had agreed to the orders that the children be placed with the maternal grandmother--

HIS HONOUR: I do not need to know, nor is it appropriate for me to know the various stages of negotiation.

DONAGHY: Well I think it is your Honour.

HIS HONOUR: Well I understand that and I'm suggesting to you that at this stage, I don't need to know that. What I am concerned about is this, a matter is set down for hearing, the practitioner for the mother clearly tells the mother not to come to court due to the late service of the material, he doesn't come to court due to the late service of material, the matter is - Mr Wheelahan mentions the matter and I indicate that I want you and the mother here and that doesn't happen because you have clearly made a decision that you are the one who decides whether the hearing will go ahead or not subject to the state of negotiations, not the Court.

DONAGHY: No, no your Honour as I say, that's not why I was not here, I was not here because we were attempting to discuss the matter--

HIS HONOUR: Okay I hear that.

DONAGHY: --and avoid a hearing, your Honour if those discussions hadn't taken place, your Honour would've been looking at my client's position on Monday afternoon was she wanted her five children back, she was outraged at the separation of her children.

In those exchanges on 23 November 2011 Mr Donaghy did not acknowledge that there was anything wrong with his conduct in failing to attend the Court for the hearing on 22 November and then failing to attend when notified of the Magistrate's direction to do so. He appears to have repeatedly failed to recognise the ethical issues being raised. Of course, it could have been that he recognised the issues, but was intentionally and persistently avoiding the issues. He did not see his conduct as disrespectful of the Court. He spoke at one stage of the Magistrate taking offence at his conduct as if the Magistrate's reaction was the problem.

The Magistrate informed Mr Donaghy after that exchange that he was considering making a costs order against him personally. He adjourned the matter 27 February 2012 to allow Mr Donaghy an opportunity to obtain legal advice and prepare any affidavit material and submissions.

MR DONAGHY'S ATTITUDE ON 27 FEBRUARY 2012 TO HIS FAILURE TO APPEAR

When the matter came back before the Magistrate on 27 February 2012, Mr Donaghy had had 3 months to reflect on his conduct and prepare evidence or submissions regarding the costs issue. On 27 February 2012 Mr Donaghy did not make or rely on any affidavit evidence or any written submissions. He made only oral submissions. Mr Donaghy told the Magistrate that he didn't make written submissions because "this is simply running up costs that I can't recover... I'm not getting paid for this and I object to you dragging this matter out in this manner".

Mr Donaghy said that the care jurisdiction was a specialist jurisdiction where specialist Magistrates learn that DOCS "put forward material that is not correct, that is not complete, and that is not in the best interests of the children."

On 27 February 2012 Mr Donaghy told the Magistrate that a costs order should not be made against him personally because "it would be very unfortunate for the Children's Court to appear to consider that assaults upon twelve year old indigenous children, locking children in their bedroom for twelve hours over night, is somehow acceptable behaviour. And, it would also be unfortunate if the message was to be sent to the Department of Community Services, well you can file documents with the Court that are misleading and if anyone questions you, the persons who question you will be hit with a cost penalty".

Mr Donaghy submitted that if Parliament had wished to give the court power to make costs orders against practitioners, then it would have stated so specifically. He also submitted that it was in the public interest that a costs order not be made against him as he was "a fearless and successful advocate" for his client's interests in the case before the Court and his cross examination on 5 July 2011 of the DOCS worker brought to light "a grave threat to the children".

Mr Donaghy referred the Magistrate to the decision of Wilson - V - Department of Community and Human Services re Anna (No. 2) [2011] NSW SC 545 per Hallam AJ at 91 - 109, which is a dicta concerning party/party costs orders in child care cases. It concerned an application by one party for a costs order against another and the requirement in the Children and Young Persons (Care and Protection) Act 1998 that a costs order should not be made unless there are "special circumstances". Mr Donaghy submitted to the Magistrate that he was bound by that decision and he ought to determine the matter in chambers and dismiss the costs application as "no doubt the Court would wish to minimise the usage of the Court's time and limit the inconvenience..."

Mr Donaghy told the Court that if any offence was taken by the Court (as regards his conduct of not attending on 22 November) then he apologised.

The evidence of what Mr Donaghy said on 27 February 2012 does not include any acknowledgment that his conduct on 22 November 2011 was less than should be expected of a solicitor or why. One interpretation is that he did not recognise those matters. Another was that he was seeking to avoid those issues.

The Magistrate said in his Judgment "again it is clear that Mr Donaghy does not, to this day, understand what he has done wrong. He is so convinced of his own righteousness in his defence of his actions in the case generally, that he cannot apparently comprehend the gravity of his misconduct. Mr Donaghy apologies for offence, without understanding that which he is apologising for, and without comprehension that he has to attend court when a matter is set for hearing."

The Magistrate stated in his reasons

"Grafton court sits as part of the Ballina circuit, which includes Maclean and Ballina Courts. Where matters are vacated, or settled, the Grafton circuit assists Lismore and Tweed Heads circuits when possible, and visa versa. Thus, had Mr Donaghy attended court on 22 November, the matter would have undoubtedly settled, and then I would have sat elsewhere for the balance of 22 November and all of 23 November 2011. As it was, I was stuck in chambers in Grafton for all of 22 November, with the courthouse, two court staff and sheriff sitting idle, waiting for 23 November in the hope that Mr Donaghy would grace us with his presence. The lawyers (for the Department and for the children) who had set aside 22 and 23 November for hearing also wasted a day. Thus, for example, Ms Steiner for the children billed Legal Aid the sum of $825 for that day. All of these funds come out of the public purse, and as I understand the funding for care matters, out of the coffers of the Legal Aid Commission and out of the coffers of the Department. No doubt both agencies have more productive uses of their budgets than to pay lawyers to sit in court awaiting the appearance of a practitioner who has made the unilateral decision not to attend."

In the decision the Magistrate stated

"The duty of a legal practitioner in these circumstances is very clear - it is to appear. Not attending in the first place, and not attending when directed, and directing your client not to attend in some sort of unilateral decision to negotiate recently served material is a breach of that duty. Where matters are set down part heard as a special fixture in care proceedings, the breach becomes a serious breach."

The Magistrate also said Mr Donaghy had evidenced "a complete lack of understanding of that duty in seeking to justify the non-appearance".

The Magistrate then discussed in his Judgment the relevant law regarding cost orders against legal practitioners and concluded that a Children's Court Magistrate had no power to make an order for costs against the applicant personally.

MR DONAGHY'S ATTITUDE ON 4 JULY 2012 TO HIS FAILURE TO APPEAR

In response to the letter of 12 June 2012 from the Legal Services Commissioner to Mr Donaghy reciting the allegations against him, Mr Donaghy wrote his letter of 4 July. Before his reply Mr Donaghy had another 3 weeks to consider the allegations, what had gone before, what the Magistrate had said about his conduct on 22 November 2011, what might have been wrong or inadequate about his conduct and why.

In his letter of 4 July his response to the allegation "the solicitor did not attend Court on 22 November 2011" was "not accepted." But he provided no evidence that he did attend court on that date. It is clear from his own evidence that he did not. His full answer was:

Not accepted. Annexed hereto and marked with the letter "A" is a true copy of the letter from myself to Mr Wheelahan the Solicitor for the Department dated 22 November 2011. I had discussion with Mr Wheelahan on the afternoon of 21 November 2011 after the late service of the Care Plans for the older two children and arranged for Mr Wheelahan to mention the matter on my behalf at Court the next day and he agreed to do so. However reviewing the transcript of proceedings on 22 November 2011 it would appear that Mr Wheelahan did not advise His Honour that he was mentioning the matter on my behalf.

I am not critical of Mr Wheelahan as given the sudden and dramatic change of the Director General's position, the matter had descended into a chaotic state where it is submitted that no party was aware of how the matter would proceed."

Mr Donaghy did not dispute the other allegations made. In respect of ten other matters in the allegations, Mr Donaghy made extensive submissions, but in each case they were irrelevant to the complaints regarding his conduct. The responses of 4 July therefore give rise to serious concerns that he still did not understand what was wrong with this conduct.

In response to the allegation that Mr Donaghy failed to comply with the Magistrate's direction for the Applicant to attend the Court, Mr Donaghy stated:

"I believe that I had complied with the direction of the Magistrate by arranging an Agent to appear on my behalf when I was unable to attend personally. In hindsight I now realize that the approach I adopted was discourteous to Magistrate Heilpern but I sincerely believe that my actions were in the best interests of my client and given that at the time the direction was made I was physically unable to attend Grafton Court in the timeframe required I made the best arrangements that I could which, I believe, were in accordance with the spirit and philosophy of the Children's Court."

Elsewhere in the same letter Mr Donaghy said he was engaged in a hearing in the Federal Magistrates Court in Lismore and was "unable to leave and attend Grafton." He also said:

"....................Children's Court proceedings are conducted with a degree of informality. Section 93(1) mandates that proceedings in the Children's Court are not to be conducted in an adversarial manner and Section 93(2) which (sic) states that proceedings before the Children's Court are to be conducted with as little formality and legal technicality and form as the circumstances permit."

Obviously having "a degree of informality" and avoiding "adversarial manner" do not imply that a lawyer for a party can decide not to attend the first day of a hearing and ask the lawyer for another party to mention the matter for him and to ask the Magistrate to "stand it down till the next day".

Also Mr Donaghy did not provide any evidence of why he could not have attended the Children's Court at Grafton upon receiving notice of the direction and have telephoned the Court to give notice if he was not going to arrive till after 11.30 am.

In his letter of 4 July 2012, more than 7 months after 22 November 2011, Mr Donaghy again did not acknowledge that his conduct on that day, in failing to attend the Children's Court and failing to comply with the Magistrate's order for him to attend was less that would be expected of a solicitor. He did not acknowledge that his conduct was unsatisfactory, unethical, disrespectful of the Court or its authority or disrespectful of the Magistrate. He again referred to the Magistrate taking offence and conceded that it was "disrespectful" of the particular Magistrate, but did not otherwise acknowledge anything was wrong with his behaviour the subject of complaint.

MR DONAGHY'S ATTITUDE ON 22 AUGUST 2012 TO HIS FAILURE TO APPEAR

When the Legal Services Commissioner wrote to Mr Donaghy on 10 July 2012 advising that he had formed a preliminary view that there was a reasonable likelihood that Mr Donaghy would be found by the Legal Services Division of the Administrative Decisions Tribunal to have engaged in unsatisfactory professional conduct, he set out the reasons and sought further submissions from Mr Donaghy by 1 August 2012.

In his response of 13 July Mr Donaghy said that he had not been provided a copy of the Magistrate's decision. The Legal Services Commissioner replied on 18 July 2012 advising that he had assumed Mr Donaghy had received a copy of the Judgment and enclosing a copy of the Judgment. The Commissioner extended the time for Mr Donaghy to provide further submissions from 1 August 2012 to 9 August 2012.

On 8 August 2012 Mr Donaghy sent a letter by facsimile to the Legal Services Commissioner advising that having considered the Judgment, he needed to read the transcript of the proceedings on 5 July 2011, and 22 & 23 November 2011 he requested a further 14 days until 23 August for further submissions. The Legal Services Commissioner responded on 15 August and advised that he would allow the additional time.

Mr Donaghy then wrote to the Legal Services Commissioner on 22 August 2012. In the course of that letter he said "I have considered the Judgment of Magistrate Hilpern and will note (sic) be making any submissions on that decision". He did not refer to the transcripts of 5 July 2011, 22 November 2011or 23 November 2011.

Later in the letter Mr Donaghy said that the Magistrate's Judgment had been published as "In the Matter of Donaghy (Costs)" and submitted that this amounted to a "public reprimand". He said that if the Legal Services Commissioner also decided to publicly reprimand him, this "this would amount to being publically shamed and humiliated twice for the same conduct." He submitted that the appropriate penalty in the matter was a caution. He concluded his letter "It is most unfortunate that this matter proceeded in the way that it did and I can assure the Commissioner this will not happen again."

Again, Mr Donaghy in the document did not acknowledge or give any indication of him understanding what was wrong about his conduct and why. He persisted only in defending his behaviour.

MR DONAGHY'S ATTITUDE IN HIS SUBMISSIONS OF 4 SEPTEMBER 2013 TO HIS FAILURE TO APPEAR

By the time of these submissions by Mr Donaghy 21 months had passed since the events in the Children's Court on 22 November 2011.

His written submissions were provided to the Tribunal and sent with his letter 4 September 2013. Although this proceeding is a review that involves the Tribunal putting itself in the shoes of the decision maker and making a fresh decision on the material available to the Tribunal, his submissions raised numerous allegations of perceived defects in the procedure adopted by the Legal Services Commissioner and in the decision he made such as:

(a) The Commissioner made the complaint, found that his own complaint was substantiated, and decided to reprimand Mr Donaghy;

(b) The Commissioner afterwards forwarded notice of the reprimand to the professional standards department of the Law Society and decided that it would appear on the Register of Disciplinary Action;

(c) In the Commissioner's reasons he indicated that he had relied upon the fact that Mr Donaghy "was recently reprimanded by the Tribunal for unreasonable failure to pay counsel's fees for two years together with a failure to communicate with counsel for 9 months and a lack of understanding of the Costs Assessment process". But that decision of the Tribunal was set aside by the New South Wales Court of Appeal on 10 April 2013 and the application for review of Mr Donaghy in that matter was remitted to the Tribunal for further hearing and determination;

(d) In paras 18 and 19 of the submissions Mr Donaghy submitted that the adoption of the summary procedure by virtue of sub section 540 (4), prevents any "action" being taken to place details of the action on the Register of Disciplinary Action under section 577;

(e) It was a denial of natural justice for the Legal Services Commissioner to act as both complainant and decision maker;

(f) The Legal Services Commissioner did not provide any reasons for adopting the "unusual" procedure that he did. He quoted authorities regarding natural justice and procedural fairness;

(g) The Commissioner had failed to make any acknowledgement that he considers himself bound by the rules of procedural fairness;

(h) He submitted: "For the purposes of the Tribunal's role today I submit that the Tribunal is standing in the shoes of the Respondent and must also consider itself to be complainant as well as the decision maker";

(i) He submitted that the Tribunal's role is not just to review the decision of the Commissioner, but also "the process by which that decision was reached";

(j) He submitted that therefore "the only decision that the Tribunal can make is to quash the decision of the Commissioner of 4 September 2012";

(k) His ground 4 was "The respondent erred in relying upon the Judgment of Magistrate Heilpern dated 7 May 2012" and ground 5 "The respondent erred in failing to properly investigate the matter". He devoted seventeen paragraphs to submissions on those "grounds". They included complaints of the failure of the Commissioner to obtain statements from Mr Wheelahan, the applicant's client in the Children's Court, and the independent children's lawyer in the Children's Court proceedings;

(l) He argued in relation to the complaint that he failed to comply with Practice Note 5 of the Children's Court of NSW "Ground 2 - the Respondent erred in finding that there was a likelihood that I would be found by the Tribunal to have engaged in unsatisfactory conduct";

(m) "The allegation is that having been served with an in excess of 100 pages of material by the Department of Community Services on the afternoon of Monday 20 November 2012 that there was a reasonable likelihood of my being found guilty of unsatisfactory professional conduct by not having brought an application for an adjournment on Tuesday 21 November 2012" and that was " less than 24 hours after I became aware of the new material". (It is noted that the applicant in the exchange with the Magistrate on 23 November 2011 told the Magistrate the material was "50 to 60 pages of care plans".) ;

(n) He stated: "I would submit that on the face of that, that a solicitor failed to comply with a practice note after only being given 24 hours notice is on the face of it an unreasonable allegation and no Tribunal would say that having less than 24 hours' notice in which time to consider the material, obtain instructions and draft an application for adjournment would there be any possibility that there was a reasonable likelihood that I would be found by the Tribunal to have engaged in unsatisfactory conduct"; and

(o) In relation to the complaint that he failed to comply with a direction of the Magistrate of the Children's Court, he took issue saying the complaint did not specify what the direction was that was being referred to or how it was that he failed to comply with it.

The applicant also raised the following 'grounds':

(p) "Ground 6 -The Respondent erred in its determination in failing to take into account relevant considerations such relevant considerations being the unique and special nature of the Children's Court per section 93 of the Children and Young Persons (Care and Protection) Act (NSW) 1998"

(q) "Ground 7 - The Respondent erred in its determination by failing to take into account the paramount principle of the Children's Court being that in any action or decision concerning a particular child or young person the safety, welfare and wellbeing of the child or young person is paramount";

(r) Ground 8 - [repeats Ground 7]

(s) Ground 9 - The Respondent erred in its determination by in (sic) failing to consider that the subject of the Children's Court proceedings were of Indigenous heritage and subject of part 2 Aboriginal and Torres Strait principles of the Children and Young Persons (Care and Protection) Act

(t) "Ground 10 -The Respondent erred in its determination by failing to take into account the conduct of the Department of Family and Community Services and its representative in failing to disclose the abuse of the children in care in any document and only revealing this under cross examination, preparing amended care plans changing their position following this revelation and not serving these until late afternoon on the day prior to the second hearing and accordingly would have resulted in a denial of procedural fairness to my client should the hearing have proceeded the next day"

(u) In support of Ground 5 the applicant submitted in paras 70 to 76 of his submission:

70. The Children's Court is a unique jurisdiction, it is a specialist Tribunal to deal with the very serious question which arises when the State determines that a child is at serious risk of harm inside their family and that they need to be removed from their family for their own protection;

71. The Children's Court makes decisions which have life-long effects upon the children and parents involved in these proceedings;

72. The Children's Court deals with the most disadvantaged members of our community such as the mentally ill, the poor, the disabled, victims of domestic violence and indigenous persons;

73. It is an extremely emotional and tense jurisdiction where parents have reached bottom in terms of the impact of their illnesses and addictions and are then confronted with having to deal with a government department and a Court decision making the ultimate demand upon them that they give up their children;

74. The jurisdiction also operates under the assumption that the rules of evidence do not comply(sic) and that the proceedings are to be conducted with as little formality, legal technicality as is possible in the circumstances;

75. I would refer the Tribunal to the matter of Re: June (No. 2) [2013] NSWSC 1111 (16 August 2013) an Appeal to the Supreme Court from a decision of the Children's Court;

76. I would respectfully submit that without (sic) a proper understanding of the Children's Court jurisdiction and of practitioners who act in that jurisdiction for parents then the decision of the Respondent would be seen as clearly wrong;

(v) "Ground 11 - The Respondent erred in determining that reprimanding the applicant was the appropriate penalty in the circumstances". The applicant submitted "that in the absence of consent of the practitioner when the process under section 540 of the Act (a summary process) is adopted in disciplinary proceedings, that a reprimand can never be the appropriate penalty" and "a reprimand is one of the most serious penalties that can be imposed upon a practitioner and to do so in the absence of sworn evidence and a full hearing, where the practitioner has the opportunity to cross examine witnesses, is procedurally unfair."

It is noted that the decision of Re: June (No. 2) [2013] NSWSC 1111 (16 August 2013) does not involve any review of an administrative decision or any administrative decision. It does not concern any aspect of the Tribunal's role in these proceedings.

MR DONAGHY'S ATTITUDE AT THE HEARING ON 6 SEPTEMBER 2013 TO HIS FAILURE TO APPEAR

At commencement of the hearing The Presiding Member raised with Mr Donaghy the role of the Tribunal as defined by section 540 of the Legal Profession Act 2004 and section 63 of the Administrative Decisions Tribunal Act 1997. The Presiding Member indicated that much of the written submissions of Mr Donaghy seemed to be misdirected by arguing that the Commissioner, in making his decision, made various errors, whereas the principal issue for the Tribunal is what, on the evidence available to the Tribunal, is "the correct and preferable decision".

But, Mr Donaghy did not accept that ruling, which was repeated several times throughout the hearing. Mr Donaghy remained focussed primarily in raising perceived defects in the procedures and decision of the Commissioner and in the Commissioner's conduct and procedures before and after the Commissioner's decision. He alleged the Commissioner was actually biased against him. He raised an allegation that the Commissioner had breached an undertaking to him not to publish his decision on the Disciplinary Register pending the outcome of the review hearing.

There was an affidavit of Mr Donaghy that he sought to rely upon. Counsel for the Law Society objected on the ground that the material was irrelevant to the issues before the Tribunal. The document was more of a series of written submissions, similar to those raised in Mr Donaghy's written submissions of 4 September 2013 and also documents and allegations in relation to the alleged breach of an undertaking by the Commissioner not to include on the Disciplinary Register findings about Mr Donaghy pending the outcome of a review.

The Tribunal did not allow the affidavit into evidence because the contents were irrelevant to the issues for the Tribunal to decide. Mr Donaghy offered no other evidence. He had filed no other affidavit and therefore was not cross examined. But he was asked some questions by members of the Tribunal in the course of his submissions. At times he avoided such questions. Sometimes his answers were unresponsive. Often his responses or submissions were irrelevant to the issues.

The hearing was not completed till after 2.45 pm. Most of the sitting time was occupied by Mr Donaghy's submissions and dealing with issues raised by him or with him. Repeatedly Mr Donaghy raised irrelevant arguments and submissions . Repeatedly when the Presiding Member informed him that the submission was irrelevant, Mr Donaghy disagreed and persisted.

When asked what explanation he relied upon for not attending the Court on 22 November 2011, Mr Donaghy said, "my letter of 4 July is what I rely upon" and "That's all. There's no need for anything else. There's no need for evidence."

In view of the submissions that Mr Donaghy had provided previously to the Magistrate in the Children's Court, to the Legal Services Commissioner, and also the Tribunal in writing, the Tribunal emphasised at the hearing that its task was not to identify errors in the procedure adopted by the Commissioner or errors in his decision, but to "decide what the correct and preferable decision is" having regard to the material before the Tribunal.

However, Mr Donaghy insisted on making submissions about perceived defects in the procedure adopted by the Commissioner and in his decision and subsequent conduct rather than assisting the Tribunal to decide what the decision of the Tribunal should be.

Mr Donaghy again raised a submission that sub section 540 (4) prohibits listing the reprimand result on the register under section 577, although this is not an issue that is for determination by this Tribunal. Mr Donaghy again raised the argument that the Legal Services Commissioner did not conduct any "proper investigation" and did not make proper "decision". He submitted that Mr Donaghy "had a right to have the first investigation".

In the hearing room, Mr Donaghy took issue with the Magistrate's direction being described as "an order to attend court". He said "it was a direction." And he said that he does not believe that a magistrate has power to order him to attend court. He said, "I don't think a Magistrate has the power to personally compel....He doesn't have a subpoena." In terms of whether he attended court once he was aware of the direction, Mr Donaghy avoided the question and said "I sent an agent at 11:00 am". Mr Donaghy told the panel that he believes that was sufficient compliance with the Magistrate's direction. When Mr Donaghy was asked whether he thinks that he did comply with the practice directions, he said that he didn't.

Mr Donaghy also told the Tribunal that he didn't know that there was a practice available to vacate hearing dates.

When it was put to Mr Donaghy that "You didn't apply to vacate the hearing?" he replied "I didn't want to vacate the hearing." When it was put to him "you didn't turn up for the hearing that day?" Mr Donaghy avoided the question. Mr Donaghy described the Magistrate's reaction as "unanticipated".

Mr Donaghy said he had never had a Court refuse him "time out of court to discuss settlement". But on the evidence 0n 22 November 2011 when he was to have attended the Children's Court he was not negotiating a settlement of that matter, but appearing for another client in a Court in Lismore.

Later he told the Tribunal "The Magistrate accepted my conduct by accepting the terms of settlement" and "He takes the benefit of my actions and yet criticises me for it." Mr Donaghy told the Tribunal he considered the Magistrate condoned his conduct on 22 November by on 23 November "accepting the settlement" and making the consent orders.

In his submissions Mr Donaghy also told the Tribunal: "..... the Magistrate took the settlement. He took the benefit of what I had done achieving an outcome for 3 indigenous children. He took the benefit of what I had done...taken them from foster care and placing them with their paternal grandmother within the family. He took the benefit of that."

Mr Donaghy submitted that the subject children when in foster care had been "assaulted, beaten and starved" and he said "to take an opportunity that presented itself on the Monday afternoon" (i.e. Monday 21 November 2011) "to save those children from spending a life in foster care and, most importantly, achieve that result that they're now living with their paternal grandmother in the family structure ( and these are indigenous children.....), to take an opportunity in that 24 hour period to save those children, which is what I did, ...could not be unsatisfactory professional conduct".

The Presiding Member asked Mr Donaghy where he was on 22 November and the Applicant declined to say. But later, after some exchanges with the Presiding Member, Mr Donaghy said that he appeared in another court in Lismore in an unrelated matter for two hours on 22 November 2011.

Apart from his submission that the Magistrate's Judgment was irrelevant to these proceedings, when it was put to him that he had not replied to any of the matters alleged in the Judgment, Mr Donaghy told the Tribunal "I consider it completely inappropriate for a legal practitioner to make submissions or criticisms of judicial reasonings or a judicial decision....".

APPLICATION THAT THE PANEL DISQUALIFY THEMSELVES

When the hearing resumed after lunch on 6 September, Mr Donaghy applied for the Tribunal members to disqualify themselves on the ground of apprehended bias. The application was refused.

The test for disqualification of a judicial officer is whether a fair minded lay observer might reasonably have apprehended from what had occurred that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the issues in the trial. (See for example 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; and Michael Wilson and Partners Ltd v Nichols [2011] HCA 48.)

None of the members of the Tribunal had any dealings with Mr Donaghy before the hearing. Mr Donaghy informed the Tribunal his application was based upon:

(a) "use of the words 'ordering me to do an ethics course' " by the Presiding Member before the adjournment;

(b) "the manner of cross examination of me" by panel members; and

Mr Donaghy submitted that those "would give an informed lay observer an impression that that the Tribunal had predetermined the matter". It would have been plain to a fair-minded lay observer throughout the hearing prior to the matters he was referring to, that Mr Donaghy was focussed on procedures, conduct and decisions of the Legal Services Commissioner; not his own conduct on 22 November 2011 and what the Tribunal should decide was the correct and preferable decision under section 540 of the Act..

A fair-minded lay observer would have observed that although the Presiding Member and Judicial Member Riordan had repeatedly reminded Mr Donaghy of the fact that the Tribunal had no role or jurisdiction to decide the objections Mr Donaghy was raising to the procedures, conduct and decision of the Legal Services Commissioner and reminded him that the real issues were the allegations about his conduct on 22 November 2011and "the correct and preferable decision" to be made under section 540. But Mr Donaghy had persisted with his submissions about the Commissioner and mostly avoided the real issues raised about his own behaviour and what the Tribunal should decide under the section.

A fair-minded lay observer would have observed that from about 10.55am until 12 noon almost all of the time was devoted to Mr Donaghy making oral submissions, even though his written submissions were more than15 pages, and most of those oral submissions were also irrelevant to the issues to be decided by the Tribunal.

A fair-minded observer would have seen that at times Mr Donaghy interrupted a panel member speaking, at times spoke over panel members and was generally articulate, loquacious and assertive. The fair minded observer would have observed Mr Donaghy say, when it was put to him that he did not turn up for the hearing on 22 November, "I did turn up to the hearing", but would have known that on all the evidence the true answer was that he did not turn up to the children's Court on 22 November 2011.

A fair-minded observer would have observed that when it was put to Mr Donaghy that he wanted to vacate the hearing date of 22 November, he denied the proposition several times and later avoided the question and then later said he wanted the hearing "stood down" till 23 November.

A fair-minded observer would also have heard Mr Donaghy tell the Tribunal that on 22 November when he failed to attend the Court, "We were in the process of settling the matter" but there was no evidence before the Tribunal of any settlement negotiations on 21 November or on the morning of 22 November. And there was evidence that on the morning of 22 November Mr Donaghy was in Lismore and engaged for 2 hours acting for a different client in another court. A fair-minded observer would also have noted that the transcript extract of 23 November 2011 in the Magistrate's Judgment includes Mr Donaghy saying to the Magistrate on 23 November 2011, "I simply put to Mr Wheelahan that for us to enable (sic) to obtain a reasonable settlement in this matter that I required time to send the care plans to my client, have her consider them properly, have discussions with her, and can I say when we came here this morning your Honour the situation was when the matter was mentioned before your Honour,, I told Mr Wheelahan we had an agreement on the 3 youngest children, my client had agreed to the orders that the children be placed with the maternal grandmother."

Then a fair- minded observer would have heard Mr Donaghy tell the Tribunal (referring to 22 November 2011), "We spent the whole day negotiating and settled the next day" and at another time, referring to his client, "She wasn't prepared to have the children go to the grandmother till I had spent the day talking to her".

The fair minded observer would have noted that in his letter of 22 November 2011 instructing Mr O'Connor a copy of which he attached to his submission to the Commissioner of 4 July 2012, Mr Donaghy stated that the care plans served upon him the day before were "over 50 pages", in the Children's Court on 23 November 2011 he told the Magistrate they were "50 to 60 pages", in his submissions of 4 July 2012 to the Commissioner he said they were "60 pages" and in oral submissions to the Tribunal on 6 September 2013 he said that if he and his client had attended Court on 22 November 2011 the matter could not have settled because "there were 100 pages of care plans to be read by the client". The fair minded observer would have heard later evidence of Mr Donaghy that the Magistrate made the consent orders "at 10.30 am" on 23 November.

The fair minded observer would have heard that when Mr Donaghy was asked whether he went to another Court on 22 November, he repeatedly avoided that question and when asked what time he went to the Court on 23 November 2011, he declined to answer.

It was after his submissions and in the absence of any evidence filed by Mr Donaghy other than his letter of 4 July 2012 to the Commissioner that Judicial Member Riordan and the Presiding Member each asked questions from about 11.53am till about 12 .15 pm. Then Mr Donaghy made further submissions until about 12 .26pm. At about 12.27 pm the panel adjourned to discuss the matter and upon returning at about 1.02 pm the Presiding Member announced that after the lunch adjournment the Tribunal would like to hear from Counsel for the Commissioner on certain issues he listed and then would decide whether it needed to hear further from Mr Donaghy.

The exchanges which occurred between Presiding Member Mullane and Mr Donaghy and between Judicial Member Riordan and Mr Donaghy between approximately 11.53 am and about 12:15 pm appear most likely to be what he referred to as "cross examination". In that period the Presiding Member and Judicial Member Riordan sought to have Mr Donaghy articulate what his case was and what evidence supported it.

In the course of those exchanges Mr Donaghy was often evasive. He sometimes ignored the question, and sometimes gave unresponsive answers. Some answers were submissions irrelevant to the issues in the proceedings. He sometimes talked over a Tribunal Member and sometimes interrupted a Tribunal Member. He told the Tribunal "I did turn up to the hearing" but later when he was asked whether he attended the Children's Court on 22 November 2011, the day the hearing was to resume, he did not answer and complained he was being cross examined. When he was asked if it was true that on 22 November he went to another court, he avoided the question repeatedly.

Mr Donaghy then made further submissions until about 12.26pm. The Tribunal then adjourned to discuss the matter. The Presiding Member announced that the reason for the adjournment was to decide what issues the Tribunal wanted the submissions for Counsel for the Commissioner to cover. The Tribunal then resumed from 1.02pm to 1.07pm and then adjourned for lunch.. The other part of the hearing that appears to be the subject of the disqualification application is the statement of the Presiding Member between 1.02pm and 1.07pm.

The Presiding Member stated that the Tribunal wanted Ms Webster's submissions to cover:

the operation of section 540 of the Act;
the application of section 63 of the Administrative Decisions Tribunal Act 1997;
any relevant cases; and
whether the Tribunal should substitute for the public reprimand both a public reprimand and imposition of a condition on the practising Certificate of Mr Donaghy for him to complete an approved ethics course that would cover his obligations to the courts.

The Presiding Member also announced to Mr Donaghy that if the Tribunal were considering whether there should be such a condition, it would give Mr Donaghy notice and an opportunity to offer further evidence and submissions and, because such a result would be more onerous than the decision of the Commissioner, Mr Donaghy would also have that opportunity to withdraw his application.

In all the circumstances the Tribunal is not satisfied that a fair minded lay observer might reasonably have apprehended from what had occurred that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the issues. We therefor refused the application.

THE SOLICITOR'S DUTY TO THE COURT

(A) General

The implications of the lawyer's status as an officer of the court (see Section 33 of the Act) include:

(1) His duty to the court is overriding so that if the duty to the court conflicts with any duty to the client, the duty to the court must prevail over the duty to the client (Giannarelli v Wraith [1988] 165 CLR 543 at 555-6 per Mason CJ, at 572 per Wilson J.)

(2) The lawyer must use his or her best endeavours to avoid unnecessary expense and waste of the courts time (Riley's Solicitors Manual [23,055.5]

(3) The lawyer must act with due courtesy to the court (Ex parte Bellanto [1963] NSWR 1556).

Disrespect for a court or its authority may amount to unsatisfactory professional conduct or professional misconduct. This is so especially in relation to orders made by a tribunal in disciplinary proceedings against the lawyer (e.g. Legal Services Commissioner v Rushford [2012] VSC 632).

In New South Wales the Supreme Court and the District Court both have power to make cost orders against a solicitor appearing in proceedings before the court (Civil Procedure Act 2005 (NSW) S99; Uniform Civil Procedure Rule 2005 (NSW) 42.3 (2)).

Contempt in the face of the Children's Court is an offence with a maximum penalty of 10 penalty units or 14 days imprisonment and can be dealt with summarily by the Children's Court (S 21 of Children's Court Act 1987). Other contempts can be dealt with by the Children's Court exercising the Jurisdiction of the Local Court, which enables the Children's Court to exercise the powers of a Judge of the District Court under the District Court Act 1973. Alternatively, the Children's Court may refer the contempt matter to the Supreme Court for determination. (Children's Court Act 1987 s21(3) & Local Court Act 2007 s 24)

Adjournment of Hearings

The overriding objective of Practice Note 5 of the Children's Court of NSW is set out in paragraph 1.1 of that document and is "enabling the Children's Court of NSW to deal with cases in its care and protection jurisdiction justly". It says that this includes, so far as is practicable dealing with a case expeditiously and fairly, "ensuring appropriate levels of expenditure of public funds" and "allotting to it an appropriate share of the courts resources while taking into account the need allot resources to other cases"

Clause 6.2 provides "if a party is represented by an agent, that agent should have adequate instructions to deal with any questions asked by the court."

Clause 16 of the Practice Note deals with "listing a case for hearing" and includes extensive provisions to ensure that, with the assistance of a 'Readiness Hearing' the matter for hearing is properly ready by the hearing date.

There is provision in the Practice Note for cost orders to be made against the party that does not comply with directions or the Practice Note and also for a matter to be relisted "for non-compliance with directions".

As at November 2011 Clause 19 of Practice Note 5 of the Children's Court provided:-

19. APPLICATION TO VACATE HEARING

19.1 If it appears to a party that a hearing date is in jeopardy as a result of non-compliance with orders of directions of the court or because of intervening events, the party must immediately approach the court for the urgent re-listing of the matter before a Children's Magistrate.

19.2 Any application to vacate a hearing date must be in writing on the prescribed form "Application to vacate hearing date" and must state the reasons for the application.

19.3 The party bringing the application to vacate a hearing must give a reasonable notice to all other parties that an application to vacate is being made.

19.4 When a hearing date has been allocated, it will not be vacated unless the party seeking to vacate the hearing provides cogent and compelling reasons.

The Revised Professional Conduct and Practice Rules 1995 were made pursuant to the power given to the Law Society of NSW by section 57B of the Legal Profession Act 1987 and since the Act came into force are pursuant to power given in section 703 of the Act. Section 57 of the Act provides that conditions may be imposed on local practising certificates by the Rules. Section 58 of the Act provides that it is a criminal offence to contravene a condition to which a local practising certificate is subject, punishable by up to 100 penalty units.

Rule 23 of the Revised Professional Conduct and Practice Rules 1995 provides that the Advocacy Rules apply to Solicitors and rule A.15B of the advocacy rules provides:-

"A practitioner must take steps to inform the opponent as soon as possible after the practitioner has reasonable grounds to believe that there will be an application on behalf of the client to adjourn any hearing, of the fact and the ground of the application, and must try with the opponents consent to inform the court of that application promptly."

Rule 15A of the advocacy rules includes a requirement that a practitioner must seek to ensure that work which the practitioner is retained to do in relation to a case is done so as to "(e) occupy as short a time in court as is reasonably necessary to advance and protect the client's interest which are at stake in the case."

(B) Appearance in Court

Clause 6.1 of the Children's Court Practice Note 5 provides that "if a party is legally represented, a legal practitioner with adequate knowledge of the case must represent that party whenever the case is listed before the court..." and "a legal practitioner..... must have sufficient instructions to answer the court's questions and to enable the court to make all appropriate orders and directions."

In Dempster v McAndrew [2003] NSWSC 994 the city agent failed to notify the principal of a hearing date, resulting in there being no appearance for the client. The city agent was ordered to pay the costs wasted as a result on an indemnity basis.

In SZABF V The Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 206 a solicitor on the record failed to appear at the hearing and the Federal Magistrate ordered costs against the solicitor and referred the matter to the Law Society for consideration of disciplinary action.

McInnis FM ordered costs against a lawyer who failed to appear at a final hearing had not filed any notice of withdrawal. He held:

"The duty of a solicitor to arrange representation or at least arrange for someone to attend the court to further explain the non-appearance of the solicitor on record and as a matter of respect and courtesy to the court, to make application for leave to withdraw as a solicitor on the record and attend court." (N231 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 206).

Similarly in SZEKQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 390 a lawyer who failed to attend a hearing and failed file, lodge and deliver relevant documents was ordered to meet the costs wasted as a result of those omissions.

In NSW Bar Association v Somosi [2002] NSWADT 279 a barrister failed to appear in the District Court at a sentencing hearing after he had been briefed to appear for the accused and had appeared at the trial. The client at the trial had been found guilty of a serious narcotics offence. Because of the absence of the barrister at the sentencing hearing, the instructing solicitor was forced to assume the advocacy role on behalf of the client.

The Tribunal held; "Mr Somosi's reply and evidence during the hearing made it clear to this Tribunal that he has not been able to face up to his own short comings in failing to appear". It held that such failure in the circumstance was professional misconduct. Mr Somosi was also found to have, in proceedings between him and his wife, failed to honour an undertaking he gave to the Family Court of Australia to pay certain costs. That conduct was also held to be professional misconduct. The Tribunal publicly reprimanded Mr Somosi regarding his conduct. He was also ordered to pay the costs of the Bar Association of the proceedings.

Another decision where a barrister failed to appear is NSW Bar Association v Donnelly [2003] NSWADT 3. There were various complaints against Mr Donnelly. In relation to one complaint it was established that he appeared in the Tamworth Local Court for a client when the matter was stood over for hearing. It was later adjourned to another date for hearing. Mr Donnelly travelled overseas and did not arrange for someone else to appear at the hearing. The grounds of the complaint that were found to have been established were that Mr Donnelly failed to appear on the hearing date and he made no arrangements for the client to be represented at the hearing. It was held that this conduct was unsatisfactory professional conduct.

Another complaint against Mr Donnelly was in relation to a client, Mr Potts. Mr Potts had appealed to the local court against a refusal to issue a security licence. It was found that Mr Donnelly had failed to attend the hearing and had failed to make satisfactory arrangements for the client to be represented at the hearing. The Tribunal held that this conduct was unsatisfactory professional conduct.

The Tribunal held at [46]:

"Mr Donnelly's many responses to the Bar Association contained a spirited defence of his position, however they also display both disturbing arrogance towards the professional obligations reviewed and a significant deficit of knowledge and understanding of the current requirements and the need therefor. It is this context which leads us to the view that, having suffered an effective penalty in the discontinuity of his practice in 1999 and again as from the hearing of these matters, the lapse of time before he can return to practice ought to be relatively brief. We are concerned to make appropriate use of the provisions of S.171C(f) of the Legal Professional Act 1987 to ensure that Mr Donnelly is required to undergo an updating of his professional ethical education before it is appropriate that he return to unfettered practice, and it is to this end that we have framed orders 2 & 3 in the absence of a nominated module or course which would specifically require and assist Mr Donnelly to come to grips with the specific current requirements with which we have been concerned, which specify an attendance requirement of 30 hours over the next two calendar years, commencing from the publication of this judgement, at seminars or courses either within the readers' course or the continuing professional development seminars conducted by, or accredited by the Bar Association now required for all barristers. It is our intent that this requirement should approximately double the now compulsory and universal continuing professional education requirements, for Mr Donnelly's next two years of practice."

In relation to the issue of whether the legal practitioner should pay the costs of the Bar Association in respect of the proceedings, at [47] the Tribunal took into account that Mr Donnelly "made appropriate admissions as to the majority of the grounds raised against him at the time of filing his replies" and in relation to a number of other grounds "it was clear that he did not contest the factual basis of those allegations but mounted limited arguments in response".

Mr Donnelly was publically reprimanded and ordered to pay the costs of the Bar Association, including the fees of senior counsel.

There is also the decision of Law Society of NSW v Hovan [2003] NSWADT 208. Mr Hovan, a solicitor, on two occasions failed to appear in court on behalf of his client on the return date of a debt recovery action by his client. Each time the client's claim was dismissed and the client was ordered to pay the costs of the defendant. In the proceedings before the Tribunal, the Law Society alleged the conduct on both occasions was professional misconduct. There were numerous other complaints against Mr Hovan which were also heard in the proceedings. The Tribunal made the following findings in relation to the complaint of non-appearance, which was the third ground or count in a particular complaint at [117-118]:

"[117] The instructions from the client were in relation to a debt recovery. On two occasions the claim was struck out due to there being no appearance by the solicitor....... On both occasions costs were ordered against the Plaintiff. The costs orders do not appear to have been contested in any way. The first non-appearance was explained by the solicitor as due to his client not being properly advised of the listing of the call over and the second on the basis that "we did not pick up on the court notices advising of the relevant dates until 4 May, by which time the matter had already been struck out and costs ordered against us." No other explanation appears to be offered and the third ground is clearly established to the Tribunal's satisfaction.

[118] The third count must be looked at as a separate count on which the solicitors reputation and, indeed, his right to practice depend as professional misconduct is alleged. The standard of proof required is, of course, the Briginshaw test (Briginshaw v Briginshaw [1938] 70 CLR 336). If the matter is worthy of being made the subject of a complaint against the solicitor the Tribunal needs more evidence to assess the complaint. The evidence is unsatisfactory and the complaint is dismissed."

Mr Hovan was struck off the roll on other grounds.

There are other more recent decisions of the tribunal where failure of a solicitor to appear in court for a client has been held to be unsatisfactory professional conduct. In Council of the Law Society of NSW V Tsaladis [2012] NSWADT 230 the solicitor failed to attend the District Court when criminal proceedings against his client (for which he had a legal aid) were listed. In Legal Services Commissioner v Angelovski [2013] NSWADT 93 the solicitor failed to attend the District Court to instruct counsel in a trial of his client, despite a grant of legal aid and instructions from his client to attend.

But in Council of the Law Society of NSW v Leslie [2013] NSWADT 81 the solicitor was found to have failed to adequately prepare the client's case in the Federal Magistrate's Court, failed comply with the timetable set by the Court, and failed to attend the hearing without warning or explanation to the Court. It was held that these failures were a breach of the solicitor's duties to his client and the Court and it was held that together they constituted professional misconduct.

Order to Attend Court

In Riley Solicitor's Manual the author states (at [25,040.10]):

"A lawyer that becomes aware that he or she will be unable, for any reason, to comply with an order of the court must inform the court and the other party or parties immediately of this inability, and apply for new or varied orders by consent or otherwise. To ignore or otherwise fail to comply with orders of the court, and instead leave it to the court or other parties to take remedial or enforcement action, is unprofessional and likely to generate a personal costs order."

The duty of a solicitor to cooperate with the court also involves following directions given and obeying orders made by the court. Where a solicitor failed to attend for examination by a receiver pursuant to an order under section 105 of the Legal Profession Act 1987, Young CJ in Eq held that the solicitor's explanation for not obeying the order was that he was working somewhere and needed an income. His Honour said that explanation was unsatisfactory and warned that a failure to obey an order in future might result in a 28 day term of imprisonment (Application of Watson [2004] NSWSC 25).

In Hopesure Pty Ltd v Melroad Equipment Pty Ltd [2004] 212 ALR 66 solicitors for the respondent formed a view that an early mediation ordered by the court would not be in the client's best interest and acted to defer the mediation. Branson J was critical of this behaviour and said at [38]:

"........ [the solicitor's] duty as a legal practitioner representing a client in this Court is to assist the Court in the management of the proceedings that involves his client. It is inconsistent with that duty for him to act as though an order of the court requiring a party to take a step in a proceeding is a mere recommendation that the party is free to comply with or disregard as it thinks best. It is important to the proper working of this court that it may operate on the basis that the legal representatives of parties understand their responsibilities to the Court and will work with the Court to ensure that its case load is managed efficiently and with due regard to interests of justice."

Mr Donaghy claimed to believe the Magistrate had no power to order his attendance and expressed the belief that the Children's Court did not have power to issue subpoenas. Mr Donaghy was wrong on both counts. Section 15 of the Children's Court Act 1987 gives powers to a Children's Court Magistrate wide enough to support an order for a litigant, or the legal representative of a litigant, to attend the hearing. The Tribunal finds that the Magistrate's "direction" for Mr Donaghy to attend was an order. Division 6 of the Children's Court Rule 2000 provides for the issue of subpoenas to attend hearings in the Children's Court.

Failure to comply with the order of the Children's Court may amount to contempt of the court (see Riley's Solicitors Manual at [20,035]). It may generate a disciplinary consequence, particularly "where it is repeated or otherwise reveals a clear disregard for the court or its authority" Riley at [35,125.20].

CONCLUSIONS

The Tribunal is comfortably satisfied that Mr Donaghy intentionally did not attend the Children's Court on the date the part heard hearing was fixed to resume and he made the decision on the previous day. Pursuant to that decision, he instructed his client not to attend the Court and also arranged to attend the Federal Magistrates Court in Lismore on the day the Children's Court part heard defended hearing was fixed to resume.

He did not comply with the Practice Note requirements for an application to vacate the listing of the hearing on 22 November. He says that he did not have sufficient time on the Monday afternoon to do that. The Tribunal accepts that was so. But there were still other options.

There was still an option to prepare the application and file it in the Registry before court the next day or in court when the matter was called and attend the court to appear on the hearing of that application. Another option was to attend the court with his client when the matter was called and make an oral application for his client to have more time to read the proposed care plans and confer with him and also for settlement negotiations to occur.

Mr Donaghy did not provide any acceptable explanation why he did not adopt another option rather than not attending when the part heard hearing was listed to continue on 22 November 2011. Asking the solicitor for another party to the hearing to mention the matter for him was not arranging independent and otherwise adequate representation for his client. Telling the client not to come to court put the client at serious risk of the Magistrate resuming the hearing in her absence and in the absence of adequate representation for her. It also could have led to a costs order against the client if, for example, the hearing was adjourned till the next day as Mr Donaghy proposed. It exposed the client to risk of a very adverse result.

The Tribunal finds that Mr Donaghy's has provided no reasonable explanation for his failure to comply the Magistrate's order for him to attend the Court on 22 November. There is no evidence that his appearance in the Federal Magistrate's Court could not have been deferred or that his previously briefed agent could not have appeared for him in that matter. There was no explanation why his travel to Grafton and appearance in the Children's Court could not have occurred after the matter in which he was appearing in Lismore (which he told the Tribunal occupied him for two hours). It would appear that if his time in that matter had not commenced until 10am he would have been free to travel to Grafton at about noon and available to appear in the Children's Court by 2pm.

Mr Donaghy's failure to comply with the Magistrate's order after he had failed to attend the Children's Court at 9.30am when the part heard hearing was listed to resume, demonstrated disrespect for the Court and its authority.

IS THERE A REASONABLE LIKELIHOOD THAT THE PRACTITIONER WOULD BE FOUND BY THE TRIBUNAL TO HAVE ENGAGED IN UNSATISFACTORY PROFESSIONAL CONDUCT (BUT NOT PROFESSIONAL MISCONDUCT) ? (subpara 540(1)(b)(i))

Mr Donaghy submitted in his oral submissions that to be unsatisfactory professional conduct, his conduct had to be "serious, wilful, dishonest or dishonourable conduct". He did not provide any authority for such a proposition. It is contrary to the wording of section 496 of the Act, which says that unsatisfactory professional conduct includes conduct "in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner."

Based on current case law Tribunal is comfortably satisfied that there is a reasonable likelihood that if disciplinary proceedings had been taken in the Tribunal in relation to Mr Donaghy's failure to attend the Court when the matter was listed at 9.30am on 22 November 2011 or later that day as ordered by the Magistrate, the Tribunal would have found that conduct to be unsatisfactory professional conduct; not professional misconduct.

IS MR DONAGHY "GENERALLY COMMPETENT AND DILIGENT? (subpara 540(1)(b)(ii))

The Oxford English Dictionary defines "competent" (so far as relevant here) as "sufficiency of qualification; capacity to deal adequately with a subject". The Australian Concise Oxford Dictionary defines "competent" as ""adequately qualified or capable,authorised to deal with a matter, ... having legal capacity and qualification". The Macquarie Concise Dictionary says "properly qualified, capable...fitting , suitable, or sufficient for the purpose, adequate."

The Revised Professional Conduct Rules require that a lawyer must act "with competence and diligence in the service of a client"(rule 1.1). There is a duty of the lawyer to maintain competence in the areas in which he practises (see Riley.Solicitors Manual [29.160- 29,190.15). Hutley JA in Law Society of New South Wales v Moulton[1981] 2 NSWLR 736 at 751 said:

"The minimum standards include... basic legal knowledge and application to keep abreast of law in his field of practice... It would seem to follow that a solicitor fit to remain on the roll must make reasonable steps to keep up with current developments in his field of practice."

For a litigation lawyer, the law in his field of practice includes the laws of practice and procedure in the court(s) in which he practises and the ethical requirements of litigation lawyers, including their duties to the courts.

The Tribunal is concerned that although the evidence discloses that Mr Donaghy practised in the Children's Court and the Federal Magistrate's Court, he did not know the following (and he has still not conceded some of these):

The existence of provisions in the Children's Court Practice Note 5 setting out procedures and requirements to apply for a hearing date to be vacated;
In the absence of the Court vacating the listing for hearing on 22 November 2011 previously, he had a duty to the court, and was required by the Children's Court Practice Note 5, to attend personally at 9.30am on 22 November 2011when his part heard hearing was to resume, or to arrange independent, competent and properly informed legal representation for his client;
The Children's Court Magistrate had power under the Children's Court Act 1987 to order Mr Donaghy to attend, as the Magistrate did;
Whether it is called "a direction" or "an order" the effect was the same.
He was required by the Children's Court, and by his duty to the Court, to attend the Court personally on 22 November, as the Magistrate required him to do;
It was not compliance with the Magistrate's order to send an agent;
The Children's Court Rule 2000 gives the Court power to issue subpoenas;

In addition, Mr Donaghy's responses to the complaints about his conduct from his appearance before the Magistrate on 23 November 2011 until his appearance before the Tribunal nearly 2 years later in September 2013 has involved Mr Donaghy persistently raising a whole spectrum of irrelevant arguments and submissions. That concerns the Tribunal because it is essential for a competent litigation lawyer to have reasonable skills in reading and understanding legislation and to recognise whether a matter is relevant or not.

The Tribunal considers that the matters raised in the preceding 2 paragraphs indicate inadequacies in competence.

Diligent is defined by the Oxford English Dictionary as including "constant and earnest effort to accomplish what is undertaken; persistent application and endeavour." The Australian Concise Oxford Dictionary says "careful and steady in application to one's work or duties" and "showing care and effort". The Macquarie Concise Dictionary says "constant and persistent in an effort to accomplish something" and "pursued with persevering attention, painstaking".

In this regard the Tribunal finds that Mr Donaghy's conduct in not attending the Children's Court on 22 November 2011 was not, in all the circumstances, careful conduct of his client's case or careful protection of her interests.

Mr Donaghy was informed on 23 November 2011 and in May 2012 of the reasons the Magistrate disapproved of his conduct on 22 November 2011. Later he was of made aware of the reasons the Legal Services Commissioner disapproved of that conduct. Also Mr Donaghy has had the experience of disciplinary proceedings regarding that conduct and nearly 2 years to consider his position and better inform himself of his obligations to the Court. But Mr Donaghy still does not concede that his failure to attend for the hearing and failure to comply with the Magistrate's order are lijely to be viewed by the Tribunal as unsatisfactory professional conduct. It is arguable that these matters suggest he is not "careful" about his professional conduct and he has not applied any "persevering attention" and "care and effort" to research whether there is anything unsatisfactory about his conduct, whether ethically of otherwise. These matters reflect adversely on him on the issue of whether he is "generally diligent".

According to the NSW Law Almanac, Mr Donaghy was admitted as a solicitor in April 2002, so that at the time of the conduct complained of, he apparently had been in practice for nine and a half years. Apart from the subject decision and the findings in this review, there are no adverse findings against him in disciplinary proceedings regarding his practice as a solicitor in that time.

It is on the basis of that prior unblemished record and the fact that the conduct the subject of complaint all concerned conduct in one matter on one day in the Children's Court, that the Tribunal concludes that Mr Donaghy is "generally competent and diligent".

ARE THERE ANY OTHER SUBSTANTIATED COMPLAINTS AGAINST MR DONAGHY?

There are no other substantiated complaints.

IS THE TAKING OF ACTION UNDER SECTION 540 JUSTIFIED HAVING REGARD TO ALL THE CIRCUMSTANCES?

The Tribunal is satisfied that it is. The Tribunal is satisfied that the correct and preferable decision is either a reprimand or a reprimand plus imposition of a condition on Mr Donaghy's practising certificate requiring him to complete a course in legal ethics that covers the topic of the obligations of lawyers to the courts.

Submissions on the issue of whether such a condition should be imposed were invited and received from counsel for the Respondent at the hearing.

An order was made by the Tribunal on 8 November for Mr Donaghy to file and serve any submissions or evidence he wishes to rely upon on that issue within 14 days. Mr Donaghy has responded by writing to the Registrar saying that he will make no such submissions until he has the Tribunal's findings on the other issues. We are therefore releasing these findings to avoid unnecessary delay in finalisation of the proceedings.

Decision last updated: 20 November 2013

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