The Council of the Law Society of NSW v Doherty

The Council of the Law Society of NSW appealed to the Court of Appeal of New South Wales against a decision of the Administrative Decisions Tribunal concerning the conduct of Mr. Doherty, a solicitor. The Tribunal had found Mr. Doherty guilty of professional misconduct, including breaches of section 255 of the *Legal Profession Act 2004* (NSW), misappropriation of trust funds, making misleading statements, and acting in a conflict of interest. The central dispute on appeal was whether the Tribunal erred in not striking Mr. Doherty's name from the roll of legal practitioners, given the findings of professional misconduct.

The Court of Appeal was required to determine whether the Tribunal had given proper effect to section 67(3) of the *Legal Profession Act 2004* (NSW), which deems a breach of section 67(2)(a) to constitute professional misconduct. Specifically, the appeal concerned whether the Tribunal should have struck Mr. Doherty off the roll, and whether he was likely to be unfit to practice law for the indefinite future. The Council argued that the Tribunal's finding that Mr. Doherty was not permanently unfit to practice should not be lightly disturbed on appeal, and that the case was not an "ordinary case" of misappropriation, but rather a borderline one.

The Court of Appeal reasoned that the Tribunal's findings that Mr. Doherty was not permanently unfit to practice were not to be lightly disturbed. While acknowledging the seriousness of misappropriation, the Court considered that Mr. Doherty's conduct, though atypical, was not characterised by evil intent. The Court noted that the misappropriated funds had been repaid and that Mr. Doherty held an honest belief in his authority to utilise the funds, based on a genuine file note. The Court concluded that the claim that Mr. Doherty was indefinitely unfit to practice had not been made out.

The appeal was dismissed with costs.