Donaghy v Legal Services Commissioner of New South Wales

[2014] NSWCA 445

Court of Appeal

New South Wales

Case Title:

Donaghy v Legal Services Commissioner of New South Wales

Medium Neutral Citation:

[2014] NSWCA 445

Hearing Date(s):

7/11/2014

Decision Date:

19 December 2014

Before:

Meagher JA at [1];
Emmett JA at [2];
Gleeson JA at [65]

Decision:

(1) Appeal allowed.

(2) The orders made by the NSW Civil and Administrative Tribunal on 21 January 2014 and 10 April 2014 be set aside.

(3) The matter be remitted to the NSW Civil and Administrative Tribunal for determination according to law.

(4) The respondent pay 60% of the appellant's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROFESSIONS AND TRADES - lawyers - complaints and discipline - complaint initiated by the Legal Services Commissioner in relation to a lawyer allegedly failing to comply with a practice note of the Children's Court and failing to comply with a direction of a Children's Court magistrate - Commissioner determined to reprimand the lawyer - appeal to the Administrative Decisions Tribunal (later the NSW Civil and Administrative Tribunal) - whether the Tribunal erred in considering matters extraneous to the original complaint - Legal Profession Act 2004 (NSW), ss 537-540

ADMINISTRATIVE LAW - administrative tribunals - NSW Civil and Administrative Tribunal - whether the Tribunal conducted its review of the Commissioner's decision in a way that went beyond its jurisdiction - Administrative Decisions Tribunal Act 1997 (NSW), s 63; Legal Profession Act 2004 (NSW), s 540

Legislation Cited:

Administrative Decisions Tribunal Act 1997 (NSW), s 63
Civil and Administrative Tribunal Act 2013 (NSW), Sch 1 cl 7
Legal Profession Act 2004 (NSW), ss 504, 537, 539, 540

Category:

Principal judgment

Parties:

Geoffrey James Donaghy (Appellant)
Legal Services Commissioner of New South Wales (Respondent)

Representation

- Counsel:

Counsel:
J Priestley SC (Appellant)
C Webster SC (Respondent)

- Solicitors:

Solicitors:
G J Donaghy & Company (Appellant)
Office of the Legal Services Commissioner (Respondent)

File Number(s):

2014/49982

Decision Under Appeal

- Before:

G Mullane, M Riordan, J Butlin

- Date of Decision: 

10 April 2014

- Citation:

Donaghy v Legal Services Commissioner (No 3) [2014] NSWCATOD33

- Court File Number(s):

122025

Publication Restriction:

Nil

JUDGMENT

1. MEAGHER JA: I agree with Emmett JA.

2. EMMETT JA: The appellant, Mr Geoffrey Donaghy (the Solicitor), has appealed from orders made by the Administrative Decisions Tribunal (the Tribunal), the predecessor of the NSW Civil and Administrative Tribunal (NCAT). NCAT had improperly been joined as a respondent, but was removed by order made on 7 November 2014. The Solicitor appeals from a decision of the Tribunal made on his application to the Tribunal for review of a decision of the respondent to this appeal, the Legal Services Commissioner of New South Wales (the Commissioner).

3. After the Tribunal was abolished on 1 January 2014, for part-heard matters, NCAT is constituted by the same members as constituted the Tribunal before its abolition and exercises all of the functions that the Tribunal had immediately before its abolition: Civil and Administrative Tribunal Act 2013 (NSW), Sch 1 cl 7(2), (3). Although two of the decisions about which the Solicitor complains are decisions of NCAT, for convenience I will refer only to the Tribunal, except where the distinction is important.

The Complaint

1. On 12 June 2012, the Commissioner determined to initiate a complaint about the Solicitor in accordance with s 504 of the Legal Profession Act 2004 (NSW) (the Profession Act). The Commissioner's decision was recorded in a document of that date (the Decision Record). There were in fact two complaints specified in the Decision Record. Complaint 1 was that the Solicitor failed to comply with Practice Note No. 5 of the Children's Court of New South Wales (the Practice Note). Complaint 2 was that the Solicitor failed to comply with a direction given by a magistrate of the Children's Court. The particulars of both complaints were as follows:

   (1)The Solicitor represented a mother in a care matter in the Children's Court at Grafton;

   (2)The Department of Family and Community Services (the Department) had removed five young children from the care of the mother;

   (3)The matter was part-heard on 5 July 2011 and then listed for two further days on 22 and 23 November 2011;

   (4)The Solicitor did not attend court on 22 November 2011;

   (5)The Practice Note relevantly provided that:

   ● 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 the urgent re-listing of the matter;
   ● Any application to vacate the hearing must be in writing on the prescribed form and must state the reasons for the application;
   ● 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; and
   ● 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.

   (6)A magistrate of the Children's Court stood the matter in the list for an hour and a half and directed his court officer to ring the Solicitor's office in Lismore to direct the Solicitor to attend the Children's Court;

   (7)When the matter was re-mentioned, a legal practitioner from Grafton mentioned the matter on behalf of the Solicitor; the legal practitioner was instructed to have the matter stood over until the next day;

   (8)No explanation was given as to why the Solicitor did not appear;

   (9)On 23 November 2012, the Solicitor attended the Children's Court and asked to be heard regarding his failure to attend on 22 November 2012;

   (10)In his submissions, the Solicitor did not address his failure to comply with the Practice Note.

2. The Commissioner wrote to the Solicitor on 12 June 2012 enclosing a copy of the Decision Record. The letter confirmed that the Commissioner had determined to initiate a complaint about the Solicitor's conduct and that the complaint was that he failed to comply with the Practice Note and failed to comply with a direction from the magistrate of the Children's Court. The Solicitor was requested to make any submissions in response to the complaint by 4 July 2012.

3. By letter of 4 July 2012, the Solicitor made submissions to the Commissioner. The Solicitor's letter addressed each of the points in the particulars set out above. The Solicitor accepted the first three points and set out further details in relation to the previous history of the proceedings in the Children's Court.

4. The Solicitor did not accept the fourth point and, by way of explanation, attached a letter dated 22 November 2011 that he had written to the solicitor acting for the Department, Mr Wheelahan. The letter referred to the fact that the Solicitor had been served the previous afternoon by the Department with amended care plans for the three youngest children involved in the proceedings and that the Solicitor was still waiting to receive amended care plans for the two oldest children. The Solicitor confirmed to Mr Wheelahan that he would require time for his client to consider the amended care plans and that it was most likely that the matter would settle. He expressed the view that the two days allocated for the matter would not be required. The Solicitor then referred to a further telephone conversation of that morning and confirmed that Mr Wheelahan was agreeable to mentioning the matter on behalf of the Solicitor, and to having it stood over to the following day, 23 November 2011, to enable time for the amended care plans with respect to the two oldest children to be provided and for his client to consider the amended care plans.

5. In relation to the fifth point, the Solicitor responded that at no time was he seeking to have the hearing of the matter vacated. He referred to the terms of his letter to Mr Wheelahan seeking to have the matter stood over to 23 November 2011 to enable him to read and consider the amended care plans and to obtain proper instructions from his client. The Solicitor pointed out that, in his correspondence with Mr Wheelahan, Mr Wheelahan had agreed to mention the matter on his behalf to enable the parties to consider the "dramatic change" in the position by the Department and to attempt to resolve the proceedings in their entirety.

6. In response to the sixth point, the Solicitor said that, after his discussions with Mr Wheelahan, and taking into account Mr Wheelahan's preparedness to act as his agent in Grafton, the Solicitor attended to a matter in the Federal Magistrates Court (as it then was) in Lismore. When he was informed that his office had received a telephone call from the Grafton Children's Court, he was unable to leave Lismore to attend Grafton. He therefore arranged for Mr Paul O'Connor, a Grafton solicitor, to attend the Children's Court to explain his non-attendance.

7. In response to the seventh point, the Solicitor attached his letter of instructions to Mr O'Connor of 22 November 2011. In that letter, he advised Mr O'Connor about the circumstances of his receipt of the amended care plans (as described above at [7]). He explained that his client resided in Brisbane and that he sought time for her to read through the amended documents and for him to obtain proper instructions. He asked that the matter be adjourned until 23 November 2011 in view of the late service of the amended care plans, which, at that stage, exceeded 50 pages without the proposed amended care plans for the two oldest children. Mr O'Connor was instructed to attend at the Grafton Children's Court as the agent for the Solicitor to advise the Court of his position.

8. In response to the eighth point, the Solicitor said that he had had a brief telephone conversation with Mr O'Connor after sending his letter of instructions. He told Mr O'Connor that he was involved in a hearing in Lismore and was unable to attend at the Children's Court and that he had made arrangements for Mr Wheelahan to attend Grafton on his behalf as he believed that the matter was all but settled.

9. The Solicitor accepted the ninth point. In response to the tenth point, the Solicitor said that, after the parties had reached agreement and the Children's Court had made orders by consent in relation to the children, he addressed the Court on what had transpired late in the afternoon on the day before the matter was listed for hearing. He said that he told the Court that he had not been seeking to have the hearing vacated, but to have the matter stand in the list whilst settlement negotiations took place. He said that, even if he wished to make an application to vacate the proceedings, given that the amended care plans had only been provided to him after 4 pm on the day before the hearing, he would not have been able to prepare an application to vacate the hearing and to file it with the Court and serve it on all the parties before the next morning.

10. In response to the complaint that he had failed to comply with a direction given by the magistrate, the Solicitor said that he believed that he had complied with the directions by arranging for an agent, Mr O'Connor, to appear on his behalf when he was unable to attend personally. He said that, in hindsight, he realised that the approach that he adopted was discourteous to the magistrate, but sincerely believed that his actions were in the best interests of his client. He said that, given that at the time that the direction was made, he was physically unable to attend Grafton Children's Court within the timeframe required, he made the best arrangements that he could, which, he believed, were in accordance with the spirit and philosophy of the Children's Court, having earlier said that the Children's Court proceedings are conducted with a degree of informality.

11. On 10 July 2012, the Commissioner wrote to the Solicitor saying that, on the basis of the information before him, he was of the preliminary view that he was satisfied that there was a reasonable likelihood that the Solicitor would be found by the Legal Services Division of the Tribunal to have engaged in unsatisfactory professional conduct. The Commissioner referred to the Solicitor's submission that it was not his intention to vacate the hearing on 22 November 2011 and said that the magistrate had stated that, when a matter has been set down for hearing, one must either attend or apply to vacate the hearing and that the Solicitor did neither. The Commissioner also referred to a statement by the magistrate that late service of material was not a reason not to attend court. In relation to the allegation of failing to comply with a direction given by a magistrate, the Commissioner also referred to the Solicitor's concession that, in not attending, he was discourteous to the magistrate.

12. After referring to ss 537, 539 and 540 of the Profession Act, the Commissioner invited further submissions from the Solicitor before forming a final view and deciding what action he would take in relation to the complaint. The Commissioner emphasised that, should he maintain his preliminary review after considering the Solicitor's further submissions, it would be open to him to conclude the complaint summarily under s 540 of the Profession Act, as the complaint relates to unsatisfactory professional conduct and not professional misconduct. The Commissioner also invited submissions from the Solicitor as to the appropriate course of action under s 540.

13. Section 537(1) of the Profession Act relevantly provided that, after completion of an investigation of a complaint against an Australian legal practitioner, the Commissioner must commence proceedings in the Tribunal, dismiss the complaint or take action under s 540. Section 540, which appears in Ch 4 of the Profession Act, applies, relevantly, where the Commissioner completes an investigation of a complaint against an Australian legal practitioner and the Commissioner 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

    ·the practitioner is generally competent and diligent; and

    ·the taking of action under s 540 is justified having regard to all the circumstances of the case.

14. Under s 540(2), the Commissioner may, relevantly, caution the practitioner, reprimand the practitioner, or determine that a specified condition be imposed on the practitioner's practising certificate. Under s 540(4), if action is taken under s 540(2), no further action is to be taken under Ch 4 of the Profession Act with respect to the complaint. Section 540(5) provides that if the Commissioner decides to reprimand a practitioner or that a condition be imposed on the practitioner's practising certificate under s 540, the practitioner may apply to the Tribunal for a review of the decision.

15. On 13 July 2012, the Solicitor responded to the Commissioner's letter of 10 July 2012, saying that he had understood that the complaint consisted of those matters contained in the Decision Record of 12 June 2012 and that that was the document upon which he had made his submissions of 4 July 2012. The Solicitor said that it appeared from the comments made by the Commissioner that he had taken into account matters in a judgment of the Children's Court magistrate informing his preliminary view. The Solicitor said that he had not been provided with a copy of any such judgment and that it would be a denial of procedural fairness for the Commissioner to take account of such material when it was not part of the complaint and not referred to in the Decision Record and when the Solicitor had not been provided with it.

16. The Commissioner then provided the Solicitor with a copy of the reasons for judgment of the Children's Court magistrate delivered on 7 May 2012. That judgment dealt not with the substantive issue of the care plans for the children of the Solicitor's client, but with the question of whether a costs order should be made against the Solicitor personally as a consequence of his conduct before the Children's Court in relation to those proceedings. After setting out extracts from the transcript of the proceedings on 23 November 2011, in which the Solicitor sought to explain and justify his position, the magistrate said that it was clear that the Solicitor believed that he had the right not to attend at the Court on a specially fixed part-heard care matter because he had made the decision that it was better that he continue negotiations with the Department with a view to reaching a settlement. His Honour observed that the Solicitor believed that it was acceptable to tell his client not to come to Court as those negotiations took place.

17. After referring to submissions made by the Solicitor, the magistrate observed that, had the Solicitor attended Court on 22 November 2011, the matter would have undoubtedly settled and the magistrate would have been able to sit elsewhere for the balance of that day and for the whole of 23 November 2011. His Honour said that the costs to the community were considerable and probably in the tens of thousands of dollars. After referring to the duty of practitioners to the Court and to the statutory basis for an order for costs against a practitioner, the magistrate observed that there were no clear powers to make an order for costs against a practitioner who behaved as he said the Solicitor had behaved. His Honour therefore reached the conclusion, based on the weight of authority cited to him, that he did not have the power to make an order for costs against the Solicitor in the matter.

18. On 22 August 2012, the Solicitor wrote to the Commissioner saying that he had considered the judgment of the Children's Court magistrate and would not be making any submissions on the decision. He pointed out that it did not form part of the Decision Record of 12 June 2012 or the covering letter of that date from the Commissioner. The Solicitor pointed out that the judgment, mentioning his name, had recently been published and displayed on the Children's Court website, and that, in those circumstances, that amounted to a "public reprimand". He said that, should the Commissioner issue him with a public reprimand, that would "amount to being publicly shamed and humiliated twice for the same conduct". He submitted that the appropriate sanction in the matter would be for the Commissioner to issue him with a caution under s 540.

19. On 4 September 2012, the Commissioner wrote to the Solicitor saying that his preliminary view, as set out in his letter of 10 July 2012, was based on the judgment of the Children's Court magistrate, the Practice Note, the Solicitor's letter of 22 June 2012 and the Solicitor's letter of 4 July 2012 attaching his letters to Mr Wheelahan and Mr O'Connor. The Commissioner expressed the view that the Solicitor had not been denied procedural fairness by not being aware of the information on which the Commissioner based his preliminary view. That was in part because, although the Solicitor did not have a copy of the judgment of the Children's Court magistrate before the Commissioner's letter of 10 July 2012, the Commissioner subsequently provided the Solicitor with a copy of the judgment and allowed him time to consider it and to make submissions in relation to it.

1. The Commissioner's letter said that, having considered the factors set out in s 540(1)(b), he had determined to reprimand the Solicitor pursuant to s 540(2)(b) of the Profession Act. The Commissioner said that he was satisfied that, based on the facts presented to him, there was a reasonable likelihood that the Tribunal would find the Solicitor to have engaged in unsatisfactory professional conduct. He said that he formed that view based on the information then set out.

2. In dealing with "Complaint 1", the Commissioner said that the Solicitor's primary duty was to the Court and that he was required to attend Court on 22 November 2011. The Commissioner referred to the Solicitor's submission that he had written to Mr Wheelahan to ask him to mention the matter and that it would appear that Mr Wheelahan did not advise the Children's Court magistrate that he was mentioning the matter on behalf of the Solicitor. The Commissioner referred to the transcript of proceedings on 23 November 2011, where the magistrate stated that Mr Wheelahan did indeed mention the matter but that, despite that, he wanted both the Solicitor and his client to attend Court and that his Honour stood the matter in the list on 22 November 2011 to allow the Solicitor time to attend.

3. The Commissioner then referred to the Solicitor's submission that it was not his intention to vacate the hearing on 22 November 2011 and referred to a statement by the magistrate that, when a matter has been set down for hearing, one must either attend or apply to vacate the hearing and that the Solicitor did neither. The Commissioner referred to a statement by the magistrate that late service of material is not a reason not to attend court.

4. In dealing with "Complaint 2" (failing to comply with a direction given by a magistrate), the Commissioner noted that the Solicitor had conceded that in not attending when directed to do so, he was discourteous to the magistrate. The Commissioner made no other reference to the terms of the complaint of 12 June 2012.

5. The Commissioner said that, having regard to the Solicitor's previous complaint history, he was satisfied that he was generally competent and diligent. He said that he was satisfied that taking action under s 540 was appropriate given that the conduct the subject of the complaint is sufficiently serious. The Commissioner said that, in reaching that conclusion, he had regard to the magistrate's comments in relation to the resources that were wasted by the hearing not going ahead on 22 November 2011 and that the magistrate had explored every avenue to determine whether or not he could make a personal costs order against the Solicitor.

The Decisions of the Tribunal

1. On 4 October 2012, the Solicitor applied to the Tribunal for a review of the decision of the Commissioner of 4 September 2012. After a hearing on 6 September 2013, the Tribunal published findings and its reasons for those findings on 20 November 2013. The Tribunal said that it was "comfortably satisfied" that there was a reasonable likelihood that, if disciplinary proceedings had been taken in the Tribunal in relation to the Solicitor's failure to attend the Court when the matter was listed at 9.30 am on 22 November 2011 or later that day as ordered by the magistrate, the Tribunal would have found that conduct to constitute unsatisfactory professional conduct, but not professional misconduct. The Tribunal also concluded that, on the basis of the Solicitor's unblemished record and the fact that the conduct the subject of the complaint all concerned conduct in one matter on one day in the Children's Court, the Solicitor is generally competent and diligent. The Tribunal said that it was satisfied that the taking of action under s 540 was justified, having regard to all the circumstances.

2. The Tribunal then said that it was satisfied that the correct and preferable decision was either a reprimand or a reprimand plus the imposition of a condition on the Solicitor's practising certificate requiring him to complete a course in legal ethics that covers the topic of the obligations of lawyers to the courts. The Tribunal referred to the fact that an order had been made on 8 November 2013 for the Solicitor to file and serve any submissions or evidence on which he wished to rely on the issue of whether such a condition should be imposed and that the Solicitor had responded that he would make no submissions until such time as he had seen the Tribunal's findings on the other issues.

3. On 21 January 2014, the Tribunal made orders that the decision of the Commissioner of 4 December 2012 to reprimand the Solicitor be set aside, that the Solicitor be reprimanded and that a condition be imposed on the Solicitor's practising certificate that he successfully complete a course of ethics education that covers the duties and obligations of a solicitor to the courts. The Tribunal published its reasons for making those orders on the same day. In its reasons, it said that the Solicitor had displayed "a continuing ignorance of his obligation to attend the Children's Court for a matter that was listed as a part-heard matter for a further two day hearing and then on the same day fail[ed] to attend the Court when ordered to do so by the magistrate". The Tribunal said that that ignorance appeared to have persisted for two years after the date of the conduct that was the subject of the proceedings. The Tribunal concluded that, in order to protect the public, it was necessary to impose the reprimand and also to impose a condition on the Solicitor's practising certificate and that that was the correct and preferable decision.

4. Finally, on 10 April 2014, after receipt of further written submissions, the Tribunal dealt with the question of the costs of the hearing. The Tribunal ordered the Solicitor to pay the Commissioner's costs of and incidental to the proceedings. The Tribunal published its reasons for making that order on the same day.

The Appeal

1. The present appeal was instituted by notice of appeal dated 14 February 2014. An amended notice of appeal dated 13 June 2014 was subsequently filed by the Solicitor. As I have said, the appeal improperly joined the Tribunal as a respondent.

2. On the commencement of the hearing of the appeal, the Court granted leave, on the Solicitor's notice of motion filed on 5 November 2014, to file a further amended notice of appeal. That leave was granted in circumstances where the further amended notice of appeal confined the grounds somewhat and senior counsel for the Commissioner did not wish to be heard in opposition to its filing, except as to costs thrown away.

3. In essence, the further amended notice of appeal raises two grounds. The first ground is that the Tribunal erred by determining the application on the basis that the complaint that was the subject of the review was other than that specified in the Decision Record or, alternatively, that the Tribunal, in reviewing the complaint specified in the Decision Record, took into account extraneous matters that were not the subject of that complaint. The second ground is that the Tribunal erred in not conducting the review on the correct basis under s 540 of the Profession Act and in making findings of fact on the material that were beyond the Tribunal's jurisdiction, in circumstances where the only question was whether, on the material presented, the Commissioner would be satisfied that there was a reasonable likelihood that the Solicitor would be found by the Tribunal to have engaged in unsatisfactory professional conduct.

First ground - basis on which the Tribunal determined the application

1. Before this Court, the Commissioner conceded that if, on a fair reading of the Decision Record, constituting the charge against the Solicitor, and the reasons of the Tribunal, the Tribunal based its conclusions on matters that did not fall within the complaint made in the Decision Record, the Tribunal had exceeded its jurisdiction and the decision should be set aside. For the reasons that follow, it is clear enough that the Tribunal failed to address properly the question that was raised by the complaints made in the Decision Record.

2. In its reasons, the Tribunal recorded that, during the hearing, the Solicitor put to the Tribunal that the complaints against him were not complying with the Practice Note and not complying with the magistrate's direction to attend. The reasons record that, when the Solicitor made that submission, the presiding member agreed with him. Curiously, however, the reasons then assert that that was not correct and that they were the complaints "in the preliminary decision of the Commissioner". The Tribunal went on to say that the final decision of the Commissioner did not rely upon non-compliance with the Practice Note. Rather, the Tribunal said, the Commissioner relied in his final decision upon the failure of the Solicitor 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 Tribunal said that the final decision of the Commissioner 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 Solicitor had an obligation to attend but he failed to do so.

3. In fact, however, the Commissioner's discussion of the complaints against the Solicitor was in virtually identical terms as between the Commissioner's preliminary decision and his final decision. Although neither decision makes explicit reference to the Practice Note (except in the final decision as part of a list of material to which the Commissioner had referred), it is clear enough that the Commissioner intended, in both decisions, to address the two separate complaints that had originally been made against the Solicitor.

4. The Tribunal then concluded, as indicated above, that it was comfortably satisfied that, if disciplinary proceedings had been taken in the Tribunal, the Tribunal would have found to be unsatisfactory professional conduct the Solicitor's failure to attend the Court when the matter was listed at 9.30 am on 22 November 2011 or later that day, as ordered by the magistrate.

5. Thus, it is clear that the Tribunal dealt with the complaint in the notice of Decision Record on the basis that the essence of the complaint was the failure by the Solicitor to be present at 9.30 am on 22 November 2011. The conclusion did not address the matter that was the subject of the complaint, namely, failing to comply with the Practice Note.

6. Clause 19.1 of the Practice Note, as extracted in the Decision Record, states that if "it appears to a party that a hearing date is in jeopardy ... the party must immediately approach the court for the urgent re-listing of the matter" and then, in cl 19.2, states that "any application to vacate a hearing must be in writing on the prescribed form". Although cl 19.1 does not explicitly use the terms "vacate a hearing", it is clear that that is what is being referred to. Moreover, although the Commissioner did not extract the title to cl 19 in his Decision Record, the title reads "Application to vacate hearing".

7. At all times, the Solicitor has maintained that the Practice Note was beside the point, because he did not wish to have the hearing vacated. The terms of the Practice Note are to be contrasted with the comments of the Children's Court magistrate in his Honour's judgment of 7 May 2012, as repeated in the Commissioner's final decision (and later considered by the Tribunal): "when a matter has been set down for hearing, you must either attend or apply to vacate the hearing. You did neither." The contrast is that, on the one hand, the Practice Note regulates certain action to be taken before the time that a hearing commences; on the other hand, the Tribunal (and, before it, the Commissioner) took into account the conduct of the Solicitor at the time of and after the commencement of the hearing. Further, there is no explicit requirement in cl 19 of the Practice Note for a solicitor to appear personally, even in the context of an application to vacate a hearing date.

8. The Commissioner contended before this Court that the Decision Record should be construed by reference to the particulars that are contained in it and, in particular, the assertion that the Solicitor did not attend Court on 22 November 2011. However, that is not the complaint. The particulars cannot expand the complaint; rather, they are facts that are alleged to substantiate the complaint.

9. The essence of the finding made by the Tribunal is that it may have been unsatisfactory professional conduct for the Solicitor to fail to attend the Children's Court at 9.30 am on 22 November 2011. That, however, is simply not the complaint that was made in the Decision Record.

10. The Tribunal also took into account what it described as the Solicitor's "attitude" in dealing with the complaint. The Tribunal referred to the Solicitor's attitude to "his failure to appear" on five different occasions identified by the Tribunal. Again, the approach of the Tribunal was that the essence of the complaint was the Solicitor's failure to appear on the morning of 22 November 2011.

11. First, the Tribunal dealt with the exchange between the Solicitor and the magistrate on 23 November 2011. The Tribunal observed that in those exchanges, the Solicitor did not acknowledge that there was anything wrong with his conduct in failing to attend the Court for the hearing on 22 November 2011 and then in failing to attend when notified of the magistrate's direction to do so. The Tribunal said that the Solicitor appeared to have "repeatedly failed to recognise the ethical issues being raised".

12. Second, the Tribunal referred to the occasion when the matter came before the magistrate on 27 February 2012, when the Solicitor had had three months to reflect on his conduct and to prepare evidence or submissions on the question of whether a costs order should be made against him personally. The Tribunal observed that the evidence of what the Solicitor said on that occasion did not include any acknowledgement that his conduct on 22 November 2011 was less than should be expected of a solicitor. No mention was made by the Tribunal of the Solicitor's failing to comply with the Practice Note.

13. Third, the Tribunal referred to the Solicitor's letter of 4 July 2012 in response to the Commissioner's letter of 12 June 2012. The Tribunal observed that the Solicitor again did not acknowledge that his conduct on that day in failing to attend the Children's Court and in failing to comply with the magistrate's order for him to attend was less than would be expected of a solicitor.

14. Fourth, the Tribunal referred to the Solicitor's letter of 22 August 2012 to the Commissioner. The Tribunal observed that the Solicitor did not acknowledge or give any indication of understanding what was wrong about his conduct and why. Again, the Tribunal made no mention of the Practice Note.

15. Fifth, the Tribunal referred to exchanges that occurred in the course of the hearing before it on 6 September 2013. The Tribunal observed that when it was put to the Solicitor that he did not apply to vacate the hearing, he replied that he did not want to vacate the hearing. When it was put to him that he did not turn up for the hearing that day, it was said that he avoided the question and described the magistrate's reaction as "unanticipated". The Solicitor said that he had never had a court refuse him "time out of court to discuss settlement". The Tribunal considered that the evidence showed that when he was to have attended the Children's Court on 22 November 2011, the Solicitor was not negotiating a settlement of the matter, but appearing for another client in a court in Lismore. Once again, the Tribunal's reference was to the Solicitor's failure to attend and no mention was made of the Practice Note.

16. It may be that a complaint could have been formulated about the conduct of the Solicitor on 22 November 2011 in different terms. Rather than asking for his opponent to mention the matter on his behalf, it would certainly have been possible for the Solicitor to arrange for the client to be present and for the Solicitor to have been present to inform the magistrate in person that he had only recently received amended care plans and required time to consider them and to take instructions. That, however, was not the complaint as formulated. The complaint quite clearly raised the Practice Note, perhaps as a result of a misconception on the part of the Commissioner. That, however, is not to the point. The Tribunal did not deal with the complaint articulated in the Decision Record of 12 June 2012. It dealt with some other complaint that had not been formulated.

17. Further, it is arguable that the Tribunal also took into account other conduct of the Solicitor that was not the subject of the complaint in the Decision Record. That is to say, it considered in detail the "attitude" of the Solicitor towards the conduct to which the Tribunal had regard, namely, the failure to appear at 9.30 am on 22 November 2011.

18. It may be that the "attitude" exhibited by the Solicitor after the event and in the course of the disciplinary proceedings might be relevant to the sanction that should be imposed, namely, the condition that he undertake a further course of instruction. However, a fair reading of the Tribunal's reasons indicates that the detailed findings made about the "attitude" of the Solicitor were not directed to the appropriate sanction. By the time of its decision on 20 November 2013, it had not received submissions on that question. Rather, the findings must be taken to have had a bearing on whether or not the specific conduct was such that the Tribunal was satisfied that there was a likelihood that the Tribunal would find the conduct to be unsatisfactory professional conduct, had disciplinary proceedings been taken.

19. The first ground is made out. It follows that the decision of the Tribunal should be set aside.

Second ground - whether the Tribunal acted within its jurisdiction

1. The Solicitor contends that the Tribunal erred in failing to conduct the review on the correct basis, and in making findings of fact that went beyond its jurisdiction. He says that the error is demonstrated by a number of matters, each of which is a finding of fact adverse to the Solicitor and each of which was determined by the Tribunal other than on the basis of the test of what was "reasonably likely". None of the matters was the subject of the complaint in the Decision Record.

2. The Tribunal determined the application for review of the Commissioner's decision under s 63 of the Administrative Decisions Tribunal Act 1997 (NSW). Under s 63(2), the Tribunal could "exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision." The Commissioner had proceeded under s 540 of the Profession Act, as contemplated by s 537(1)(c). That course was adopted rather than the two other courses contemplated by s 537 of dismissing the complaint or commencing proceedings in the Tribunal. Section 537(1)(c) refers to the procedure under s 540 as the summary conclusion of the complaint procedure.

3. Section 540 applies if the Commissioner has completed his investigation into a complaint and is satisfied as to the three matters referred to in s 540(1)(b). The first matter is that the Commissioner is satisfied that there is a reasonable likelihood that a practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct. The object of s 540 is to permit the Commissioner to deal with certain complaints more expeditiously and effectively. The procedure does not involve a trial or the making of a finding as to whether a practitioner has engaged in unsatisfactory professional conduct. Further, it does not involve the finding of facts adverse to the practitioner. The implementation of the procedure contemplated by s 540 entails a consideration of the material available in order to determine whether it is reasonably likely that, had the matter proceeded to a trial before the Tribunal, a finding of unsatisfactory professional conduct would be made. The reasons of the Tribunal indicate, however, that it made findings adverse to the Solicitor beyond the conclusion called for under s 540.

1. For example, the Tribunal found that the Solicitor did not provide any evidence of why he could not have attended the Children's Court at Grafton upon receiving notice of the magistrate's direction and why he could not have telephoned the Court to give notice that he was not going to arrive until after 11.30 am. That appears to be critical of the Solicitor, in circumstances where he in fact arranged for an agent to appear on his behalf at 11.30 am. The Tribunal's reference to the Solicitor appearing in the Federal Circuit Court for another client in Lismore, rather than discussing settlement with his client, is also critical of the Solicitor.

2. Early in its reasons, the Tribunal referred to inconsistencies in the versions given by the Solicitor as to the time when the revised care plans were served on him. The Tribunal's observations draw no distinction between when the amended care plans were served on the Solicitor and when he may have been informed orally by Mr Wheelahan of the intention to provide amended care plans. Such matters were not tested having regard to the summary nature of proceedings under s 540. The finding in those terms indicates that the Tribunal mistook its task.

3. In his letter of 4 July 2012 to the Commissioner, the Solicitor told the Commissioner that he had given instructions to Mr O'Connor that he was involved in a hearing in Lismore and was unable to attend. The Tribunal said that that was not true because the letter that the Solicitor sent to Mr O'Connor on 22 November 2011 did not disclose anything about the Lismore proceedings or say that the Solicitor was unable to attend the Children's Court in Grafton. Thus, the Tribunal assumed that the letter of 4 July 2012 was asserting that the relevant matters were all set out in the letter to Mr O'Connor. However, in the 4 July 2012 letter, immediately before the sentence describing the instructions to Mr O'Connor that he was involved in a hearing in Lismore, the Solicitor had written: "I had a brief telephone conversation with Mr O'Connor after sending my letter of instructions through to him." Thus, while there was not a reference to the Lismore proceedings in the Solicitor's letter to Mr O'Connor, it is clear from the letter of 4 July 2012 that that reference was made orally to Mr O'Connor on the telephone. A fair reading of the Tribunal's reasons suggests that the finding about an untruthful assertion was both factually incorrect and taken into account adversely.

4. The Tribunal also made findings to the effect that the Solicitor "intentionally did not attend the Children's Court", that the Solicitor did not provide any acceptable explanation "of why he did not adopt another option rather than not attending when the part-heard hearing was listed to continue on 22 November 2011", that the Solicitor "provided no reasonable explanation for his failure to comply with the magistrate's order for him to attend" and that the Solicitor's failure to comply with the magistrate's order "demonstrated disrespect for the Court and its authority".

5. Proceeding to make findings of the nature mentioned above demonstrates that the Tribunal misunderstood its function in considering a matter under s 540 of the Profession Act, and thereby under s 63(2) of the Administrative Decisions Tribunal Act. That is a further basis for concluding that its decision should be set aside.

Conclusion

1. It follows from what has been said above that the Tribunal erred. Accordingly, the orders made on 21 January 2014 and 10 April 2014 should be set aside and the matter should be remitted to NCAT for determination according to law.

2. The Solicitor asks for his costs of the appeal if successful. He has been successful and is therefore entitled to an order for costs. However, the further amended notice of appeal changed considerably the scope of the appeal. The Solicitor should not be criticised for cutting down the grounds. However, the lateness of the amendment meant that considerable effort on the part of the Commissioner and his legal advisers was wasted. In the ordinary course, the Solicitor would be ordered to pay the costs thrown away by the amendment and would otherwise have the costs of the appeal. Rather than put the parties to the expense of disputing what part of the parties' costs has been thrown away, the appropriate order is that the Commissioner pay 60% of the Solicitor's costs of the appeal.

3. The orders of the Court therefore should be as follows:

   (1)Appeal allowed;

   (2)The orders made by the NSW Civil and Administrative Tribunal on 21 January 2014 and 10 April 2014 be set aside;

   (3)The matter be remitted to the NSW Civil and Administrative Tribunal for determination according to law.

   (4)The respondent pay 60% of the appellant's costs of the appeal.

4. GLEESON JA: I agree with Emmett JA.

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